Author Archives: Sarah Phillimore

Costs of Experts in Care Proceedings – what happens when parents dispense with their lawyers?

 

The decision in J (A Child: Care Proceedings: Apportionment of Expert’s fees) [2017] EWFC B49 is mainly concerned with how to ensure the court gets help from expert witnesses now that their fees are subject to pretty stringent caps by the Legal Aid Agency (LAA -formerly Legal Services Commission or LSC)

I set out the discussion about hourly rates and apportionment of fees below; its pretty dry stuff but horribly necessary. It is clear that we live in a society now where a decision by the court that an expert’s opinion is ‘necessary’ is a decision that can be thwarted by a branch of the government that has set the level of acceptable rates for expert pay. It is possible to argue that your expert should be paid more but only in ‘exceptional circumstances’.

Matters were complicated here by both parents refusing to instruct lawyers and thus take advantage of the non means non merits tested public funding they would get.

If all the parties had lawyers the costs would probably be split 4 ways – in this case the court had to split them between the LA and the guardian. This does in fact reduce the burden on the LAA as it faces only 50% of the bill rather than 75% had costs been split four ways and the LA was the only party not with a legal aid certificate. So hopefully it won’t be a problem in this case. But what if it is? What if there are problems for the guardian on his publicly funded certificate? Best case scenario is further delay while arguments are had with LAA. Worst case scenario  is the court doesn’t get the evidence it needs and more experts are put off appearing in family courts over concerns they may not get paid for the work they do.

The discussion and clarification about issues of apportionment of expert fees are very relevant for lawyers, which is why I deal with it below. But the real worry for me about this case is WHY are the parents not accepting lawyers? I accept from some Twitter discussions about this, it could just be that they are distrustful of lawyers having had previous bad experiences.

But I worry – and have plenty of evidence to support my worry – that whispering in their ears will be the voices of those such as Hemming. That they have been told not to trust ‘legal aid losers’ and thus they will try and fight their corner alone. Their baby has a serious head injury and they are in the pool of perpetrators. One of the options before the court is adoption. To attempt to participate in these proceedings without a lawyer is sheer madness. But to end up paying money to some dodgy McKenzie Friends would make it a tragedy.

I remain shocked, sad and baffled that the activities of some self styled McKenzie friends appear to attract so little attention or concern in the wider world. I hope these parents do not come to regret the choice they made here.

For more details about my concerns about Hemming and his organisation JFF, see the posts set out here. 

Summary of the decision in Re J concerning experts’ fees

  • There is no ‘normal rule’ that costs are apportioned equally between all parties. The court retains discretion.
  • Hourly rates are matter for the LAA to determine but apportionment of fees a mater for the court – probably…
  • Guidance re applying for prior authority is inconsistent but to avoid delay it should be done quickly
  • The LAA should give reasons for its refusal

Fixed rates paid to experts when parties are legally aided.

1. Para 1 of Schedule 5 to the Civil Legal Aid (Remuneration) Regulations 2013 provides that subject to paragraph 2, the Lord Chancellor must pay remuneration to the provider for the expert service at the fixed fees or at rates not exceeding the rates set out in the Table. The Table that follows sets out a list of different categories of expert and the permitted maximum hourly rate for that expert.
2. It is possible to get paid more than these rates. This is set out at paragraph 2 of Schedule 5, if the circumstances are ‘exceptional’. This is defined as meaning the expert evidence must be ‘key’ to the client’s case AND either the material is so complex an expert with high level of seniority is required OR the material is so ‘specialised and unusual’ that only very few experts could deal with it.
3. If parties want to get their expert paid by the Lord Chancellor via the Legal Aid Agency, beyond the rates set in the Table because of exceptional circumstances, they have to apply to the LAA for ‘prior authority’ , i.e. permission to go over the fixed rates. If they don’t get this permission, the solicitors could end up with the bill as they have now a contractual relationship with the expert to pay for his or her services. They are not expected to take this risk and can’t be compelled to take it.
4. The application for prior authority is via a prescribed form. If refused there is no right of appeal. The solicitor can ask the LAA to reconsider but only challenge to refusal is by way of judicial review. The LAA suggest that they take 9 days to process an application but in reality it appears it will take much longer than that. This is potentially a cause for delay in Children Act cases.

Is equal apportionment of fees the ‘normal order’ where there is no issue over resources? ANSWER NO

5. This was the first question posed in Re J. With regard to the issue of apportioning fees the court examined the decision of the Court of Appeal in Re JG (A Child) [2014] EWCA Civ 656. The Lord Chancellor asserted it was the ‘normal’ rule that costs should be apportioned equally between the parties and any departure from this ‘normal’ rule that increases a burden on a publicly funded party should be confined to only ‘exceptional circumstances’. The court rejected the idea that such a ‘normal rule’ existed and said ‘it all depends on the particular circumstances of the case’ (para 16).
6. Instead the court looked to the decision in Calderdale MBC v S and the LSC [2005] 1 FLR 751. All parties were publicly funded except the LA. The parties jointly appointed an expert. The LSC persuaded the court to apportion 50% of the costs to the LA. On appeal Bodey J apportioned costs equally between all parties – so the LA paid 25%.
7. Bodey J was clear this was a matter for the court’s discretion. In the exercise of its discretion the court must consider all circumstances but in particular:
a. The adequacy of the work done by the LA itself
b. Where the report is directed at threshold or welfare issues
c. The need for each party to have confidence in the integrity of the forensic process.
8. The court in Re J considered two other authorities and concluded it was clear that the court has discretion as to what order is made as to the costs of instructing experts in family proceedings.

The Family Procedure Rules 2010

9. The impact of Rule 25.12(6) FPR mirrors Rule 35.9(5) CPR and provides:
Unless the court directs otherwise, the relevant parties are jointly and severally liable for the payment of the expert’s fees and expenses
10. The court conceded this is an odd provision as it appears to be concerning itself with the contractual relationship between the parties and the expert. However, the court decided that when reading it alongside Rule 2512(4)(a) – the court may give directions about experts fees and expenses – it is not intended to be prescriptive and simply establishes a ‘default’ position in the absence of any other court directions. This does not however set up a ‘normal rule’ that costs are to be apportioned equally.

What happens when one party has no money?

11. In re J neither parent was able to pay anything as they had very limited means and they had refused to instruct lawyers even though they would have attracted non means and non merits tested legal aid. If the parents had been legally aided the court had no doubt it would have ordered the expert fees to be shared equally between all parties. Black LJ in re JG was very clear that ‘equality is not the norm’ and the impecuniosity of a party may justify the unequal apportionment of an expert’s fees between the parties’.
12. The court therefore concluded at para 18 of the judgment that it had to accept this was a case ‘in which fairness and common sense dictate that an order requiring an equal sharing of the experts’ fees is wholly inappropriate’. The fees should be paid equally by the guardian and the LA.
13. However, the court still needed to consider the Guidance published by the LAA, which was updated in September 2014. Para 1.6 of the Guidance headed ‘Joint instructions and apportionment generally’ advises that it is normal practice for an application to be made for prior authority wherever a party’s legal representative or the expert are unwilling to take a risk as to assessment of expert fees’
14. There is also Guidance published in 2013 on Remuneration of Expert Witnesses which was updated in April 2015. Section 4 of that guidance appears to contradict para 1.6 of the 2014 guidance as it makes application for prior authority mandatory – ‘you MUST always apply for prior authority where you seek to incur costs of an expert service at higher rates than those set out in the Remuneration Regulations…’
15. Para 4.5 of the 2013 Guidance also recognises that unequal apportionment of costs will not always be unusual in care proceedings – for e.g. one party may be an intervenor and it wouldn’t be appropriate for them to bear an equal share of an expert report going to an issue which is not relevant to their intervention.

So what happened in Re J about splitting costs between LA and Guardian?

16. The court approved the instruction of two experts and determined their fees should be split 50/50 between the LA and the Guardian. The court asked – why is prior authority needed before a letter of instruction can be sent? And if an application is made for prior authority for an unequal apportionment of an expert’s fees ordered by the court, is it open to the LAA to refuse that application?
17. Sir Nicholas Wall P in A local authority v S and others [2012] EWHC 1442 (Fam) was clear that the LSC has power conferred on it by Parliament to refuse to fund an instruction or fund in part only. The only remedy is by judicial review. BUT that was a case dealing with the hourly rate paid to experts. How payment of that hourly rate is to be shared between the parties is NOT subject to any regulations. ‘The issue of apportionment is at large’ (para 24).
18. The court was doubtful that the LAA could interfere with the decision of the court about apportionment, but this was a question for another court on another day. However, the guardian’s solicitor thought it prudent to apply for prior authority in any event and court agreed this was sensible.

The hourly rates of the expert in Re J

19. The excess requested by the expert was £432. Dividing this between the LA and the guardian means that the guardian would have to pay £216 more than could be claimed by the LAA. Even if the guardian was only paying 25% that represents £108 more than could be claimed back. The court agreed that the guardian must seek prior authority to instruct the expert at an hourly rate in excess of the standard rates.
20. The application for prior authority should be made without delay and the LAA, if it refused the application should give reasons for its decision as fairness dictates that the parties are able to understand why it has refused to allow what the court has considered necessary – and if appropriate, challenge can be made speedily.

What are the nature of and limits to parents’ rights?

This is a post by Sarah Phillimore

Parents versus the state

The question of ‘parents rights’ has been bought into very stark focus by the court hearings around Charlie Gard. EDIT And have continued around the case of Alfie Evans. There has been an enormous wealth of comment, blogs and articles which demonstrates the strong emotional reactions of many to these proceedings; a stark illustration of the tensions around balancing completing ‘rights’ and interests of parent and child – particularly when the child is an unconscious baby.

A thoughtful article in the Independent summarised the key issues well – decisions over Charlie Gard’s future encapsulated a clash between medical opinion and parental instinct. The law is clear; where doctors and parents disagree over what treatment is in the ‘best interests’ of a child, neither parents nor doctors are able to demand or veto certain treatment. Any dispute must come before a court where a Judge will decide. The court had to operate on the fundamental principle of the Children Act 1989; that Charlie’s welfare would be the ‘paramount’ consideration.

Parents versus parents

Parents ‘rights’ when they argue between themselves about what is best for their child, are utterly subsumed into the idea of the ‘welfare of the child’. This principle was firmly and clearly restated by the Supreme Court in B (A Child) [2009] UKSC. See the judgment of  Lord Kerr at para 37 :

… 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.

There is an immediate and obvious distinction between public law (cases involving the local authority and parents) and private law (cases involving disputes between family members). Where the state wishes to intervene in the sanctity of family life, it has to satisfy the test under section 31 of the Children Act 1989 and show the child is suffering or at risk of suffering significant harm. Nothing less will justify state intervention and this high threshold will mean that some children grow up in less than ideal situations. The risks and impracticality of any policy of deliberate ‘social engineering’ determine this outcome.

But in private law cases, it is different. The focus there is on which parent or which place would promote the child’s best interests and ‘parents’ rights’ are clearly subsumed as relevant only insofar as the parents claim a right to promote those best interests.

There are some who are critical of this approach and worry that the pendulum may have swung too far away from considering ‘parents rights’ or the rights of the family as a whole.

However, the emphasis on the welfare of the child is explained by the problems that arise when individual family members have very different views about what constitutes a child’s best interests. A stark example is found in the case of Gibbs v Gibbs in 2017 where the mother was eventually sent to prison for refusing to end her campaign to publicise the father as abusive towards their children. To attempt to resolve a dispute about a child by identifying, analysing and weighing in the balance the ‘rights’ of all adult disputants would take time and energy away from identifying what the child needs.

Some areas of concern

Why does the test to over rule a parents’ rights differ according to who or what wants to prevail? 

The question for the court, in deciding a clash between parents and a state agency that happened to be a hospital was not whether Charlie Gard would suffer ‘significant harm’ if further treatment was carried out. The issue was whether or not the treatment was in his ‘best interests’ – his welfare was paramount. 

Some commentators expressed concern about this. If social workers decide that a child should be removed from his or her parents’ care, they have to bring this to a court and satisfy the test under section 31 of the Children Act 1989. That children would ‘do better’ in another environment is never a justification – as Baroness Hale commented in Re B (Children) [2008] UKHL 35

In a totalitarian society, uniformity and conformity are valued. Hence the totalitarian state tries to separate the child from her family and mould her to its own design. Families in all their subversive variety are the breeding ground of diversity and individuality. In a free and democratic society we value diversity and individuality. Hence the family is given special protection in all the modern human rights instruments…

Already, it isn’t clear what weight is afforded to the views of parents who clash with the decisions preferred by a state agency. Why should a decision whether or not to end medical treatment for a child be subject to a different test to the decision whether or not to remove a child from the parents’ care?

No one has doubted that Charlie Gard’s parents were acting out of anything other than love for their son and wish to secure him the best possible treatment. If there was no evidence before the court that their decisions risked causing him significant harm, why should the court interfere? No doubt, Charlie Gard’s parents have found the process by which their wish to make decisions for their son was overruled by the courts, similar to the misery and bafflement of a parent who faces the adoption of their child, without their consent.

If there is no legal aid, what are the implications for access to justice?

A further anomaly is the automatic availability of legal aid to parents in care cases – but not parents facing applications by an NHS trust, or wishing to argue against an adoption order, or parents arguing between themselves – unless one can show evidence of domestic violence.

Charlie Gard’s parents did not have legal aid and could not afford to pay for a lawyer. They were fortunate to find lawyers prepared to act for nothing. Francis J commented at para 17 of his judgment:

it does seem to me that when Parliament changed the law in relation to legal aid and significantly restricted the availability of legal aid, yet continued to make legal aid available in care cases where the state is seeking orders against parents, it cannot have intended that parents in the position that these parents have been in should have no access to legal advice or representation. To most like-minded people, a National Health Service trust is as much an arm of the state as is a local authority. I can think of few more profound cases than ones where a trust is applying to the court for a declaration that a life- support machine should be switched off in respect of a child.

‘Rights’ which cannot be enforced in court because the parents can’t afford legal representation and don’t understand complicated law, are no rights at all.

The adversarial system and the standard of proof

An enormous problem – and one which I think firmly underpins most of the criticism and distrust of the family law system – is that an adversarial process which relies on oral evidence and cross examination may work tolerably well in circumstances where the disputed facts are often backed up by contemporaneous written documents. But it is often very difficult to test ‘evidence’ that is no more than the assertions of two people. Particularly when these people are giving an account of their relationship, built up over many years and which may have been experienced/witnessed by only them.

In cases where parents make allegations against each other of sexual or violent abuse, it is my view that waters have been seriously and dangerously muddied by the requirement that police forces were to commence investigations into sexual assaults on the basis that they ‘believe’ the complainant (who is usually described as the ‘victim’ ).To have as a ‘starting point’ a belief that one person is telling the truth fundamentally poisons the integrity of any investigative process. See the 2016 report of Sir Richard Henriques into the failures of the investigations of the Metropolitan police in ‘Operation Midland’.

Parents in care proceedings have raised serious criticisms about the standard of proof in care cases being on the ‘balance of probabilities’ – pointing out that removing a child from an unwilling parent is every bit as horrible as sentencing a parent to a prison sentence and the standard of proof should therefore meet the criminal standard of ‘beyond reasonable doubt’.

What are rights worth if they can be discarded by the state on a low standard of proof?

Enforcement of established rights

However even a ‘blameless’ parent who is vindicated at the conclusion of a finding of fact may not find that their ‘rights’ translate into any kind of action by the courts, because of the likely impact of such action on the emotional well being of the child.

This is often the argument used against removing a child from an adoptive placement to return to birth parents – but the UK has been criticised for failing to give sufficient recognition to the child’s right to be brought up by his or her birth parents.

What are ‘rights’ worth if they are not even considered, because ‘paramount’ is interpreted as ‘exclusive’ or ‘overwhelming’ ?

 

How do we establish what is in a child’s best interest if parents don’t have the ‘right’ to determine this?

This brief discussion above about the limits of parental autonomy to determine outcomes for their children highlights that as a society we have agreed that parents do not have the right to subject their children to whatever indignity they wish in the name of ‘family life’ or ‘respect for parents’.  The court will therefore have to hear evidence and make a decision based on the evidence before it.  The court is faced with a truly difficult job when before it come two parents who argue from entirely different perspectives about the fitness of the other to parent.

I have always supported the need for the state to intervene to protect the most vulnerable members of its society. Children are not the chattels of their parents; some children do need to be ‘rescued’.

But the state and its officers have to tread carefully around the ‘family’ and how they chose to intervene in its structures. The emotion and interest in the ‘rights’ of parents in the aftermath of proceedings around Charlie Gard demonstrate a clear need for further discussion and exploration of the nature and extent of parents rights. A system that appears to horrify a large proportion of the population subject to it, has either not been well explained or should not be defended.

 

Autistic Children In Care – uninformed decision making leading to poor outcomes.

This is a guest post from a parent. She is concerned about the high numbers of children with autism entering the care system and considers what the explanation is for this. Are the professionals working in the CP system as well informed as they need to be? Does the failure to identify autistic children in care lead to bad decisions being made for them?

My son entered Care in his teens during a deep crisis when he was given an autism (ASD/ASC) diagnosis. When he entered Care it was devastating for our family but I was comforted that ‘the experts’ were now supporting him. It took a while to realise that, when trying to help him, experienced and committed social workers had very little to fall back on in terms of training about understanding what it means to be autistic.

It may seem unreasonable that I expected hard-pressed professionals to take account of his needs in their practice but if my son were to make decisions about where to live or what to do with his life post-18, how could he be expected to make informed decisions without professionals meeting his communication needs and understanding how to adjust their practice to address the core features of autism? I was shocked that there seemed little appreciation that an autistic person without a learning disability is likely to have these needs, irrespective of the number of words in his/her vocabulary or ability to repeat the words of professionals to other professionals. Their practice also needed to take account of ‘theory of mind’ difficulties and very high anxiety levels when faced with uncertainty (eg delayed decision making about placements etc) or attempts to ‘control’ rather than ‘agree’.

I began to read widely about the Care system and eventually concluded based on what we know about the difficulties of children in care around behaviour and poor mental health that there are likely to be much higher numbers of autistic children in Care than generally acknowledged and that these children are largely invisible in policy or research into the Care system. There are well known links between being in Care and entering prison and having a learning disability. Young people entering prison are also screened for traumatic brain injuries and cognitive difference, unlike children entering Care who are only screened for ‘emotional and behavioural problems’. Training or continuing practice development for social workers, independent reviewing officers, solicitors, CAFCASS officials around disabilities is minimal.

Evidence for much higher numbers of children in Care with autism than in their equivalent non looked after cohort of peers has begun to emerge. A recent study has identified variance between local authorities in the numbers of children in Care with an autism diagnosis from 0% to 12% of its looked after children. Recent clinical studies of adoptive children have also identified high numbers of adopted children with undiagnosed autism. 27% of the sample group were assessed as autistic (10%) or having significant autistic traits (17%)

Possible reasons for high numbers of autistic children in/from Care, many without diagnosis?

These are some thoughts: –

• Acknowledged difficulties accessing appropriate support where children have a diagnosis may lead to extreme crises within families particularly as a child reaches adolescence and unsupported autistic children may develop poor mental health.

• Children with behavioural difficulties (anti-social, unsafe and violent) may come to the notice of social care and other professionals and these behaviours can overshadow a undiagnosed child’s difficulties. Problems with multi-agency working means there are few routes to ‘late diagnosis’ for the child.

• On entering Care, guidance for clinicians carrying out looked-after-children’s health checks promotes an approach where disabilities including autism are seen in the context of educational need so autistic children who do not have learning disabilities are not systematically ‘picked up’ and diagnoses for non-school age children are not identified because a toddler has no educational need. The list of conditions that health professionals should be alert to does not include autism. 

• Autistic parents have an increased probability of having autistic children and may have high levels of vulnerability and inadequate support to enable them to an increase their parenting capacity leading to their children entering Care as a result of neglect.

• Autistic mums of autistic children’s have a natural inclination to ‘tell truth to power’ and other traits that could easily be misunderstood as non-engagement with professionals. “I understand that my autism makes me a difficult person to deal with: I don’t know when to back off when I know I’m right. Maybe I can’t always look people in the eye, so perhaps I come over as being shifty. Autistic people do hyper-focus, but they mistook my obsession as a sign I was unstable.’’

• Many professionals have training in child-development that focuses almost exclusively on attachment theory. Attachment theory is ‘normative’. It does not acknowledge that a child’s development may deviate from the norm for many reasons including genetic inheritance, pre and post-natal substance and medicine exposure, post birth accident or illness for example. Linked to this, experts have identified a phenomenon of over-diagnosis of attachment difficulties as a result of the ‘allure of diagnosis of rare disorders in maltreated children’.

• Professionals may see vulnerability/ difference of autistic child or parent and worry about the child. When it comes to working with ‘autism families’ they do not have any context to’ fit this worry within’ unless they have very close links with experienced clinical support. .

Professionals are likely to be short of time and resources and risk-averse so may ‘err on the safe side’ by removing autistic children.

Should professionals involved in Child Protection be concerned?

At the very least a failure to identify autistic children within Care points to uninformed decision-making about children at the edge of and within Care and this uninformed decision making is likely to be a considerable factor in poor outcomes for many children who enter Care.

Evidence of under-identification of autistic children within Care is also a damming indictment of health care provision for looked-after-children.

It also raises the possibility that some children with both diagnosed and undiagnosed autism have been removed from loving families who with earlier diagnosis, more understanding and targeted help could have delivered better outcomes for their children without needing the State to intervene within a family in the most draconian way imaginable.

 

What needs to change?

The implications for the Care system are profound.
It is likely to impact:

and raises many questions including:-

What does good support look like for autistic children in Care given their greatest need is likely to be around ‘placement’ stability rather than around education as would be the case for most other autistic children?

 

‘Adoption by Stealth’ – the dangers of rhetoric and the law of unintended consequences

 

On July 10th the Family Rights Group launched their report ‘Co-operation or Coercion? Children coming into the care system under voluntary arrangements’ .

I wrote a brief summary of the speakers’ contributions and the report’s recommendations for The Transparency Project.

I commented that this was a very important report, with very sobering findings and it demanded an immediate call to action. It was very clear that parents were finding themselves subject to ‘soft coercion’ when agreeing to have their children accommodated under section 20; that no one took the time to explain to them what was going on and they didn’t realise that they kept their parental responsibility and could remove their children at any time.

This is a particular problem when looking at ‘foster to adopt’ placements. The aim of such placements is to ensure that more children are placed with their permanent carers as soon as possible on a fostering basis while the LA seeks a placement order from the courts.  This is a key example of the tensions inherent in protecting both parents’ and children’s rights.

Parents have a ‘right’ to a fair hearing under both Articles 6 and 8 of the ECHR; an opportunity to make their case and show evidence to the court that they can parent their child. But children have a ‘right’ not to suffer the harm that almost inevitably follows frequent placement between parents, foster carers and adoptive parents.

How do we balance those rights? I agree, to ask parents to ‘give up’ their babies via section 20 into a foster to adopt placement means they are signing up for something very significant, at a time when they are very vulnerable and without any scrutiny from the court or any real access to legal help. It may well be very difficult to ‘unpick’ such a placement as the months go by.

Parents who are involved in care proceedings have autotmatic access to fully funded legal representation, regardless of their wealth or the perceived merits of their case – which is absolutely how it should be. Parents whose children are accommodated under section 20 however, are most likely to only get independent legal advice if they can afford to pay for it, or if they can access help from a charity such as the Family Rights Group. Sometimes a LA can be prevailed upon to pay for a few hours chat with a solicitor but its easy to see how this could be insufficient as a real help to parents. The courts have been quick to condemn what they see as abuse and bad practice around use of section 20 as it removes decisions about where children live from any kind of court scrutiny.

Thus, the lack of understanding about section 20 is clearly a real and significant problem, as detailed by the report’s findings. Articles published in the Guardian on the day of the launch categorised this as ‘adoption by stealth’ and that parents were ‘tricked’ into handing over their children.

I understand that this is the reality of the problem as many parents will see it. I appreciate that journalists have to write in compelling and punchy language to engage their readers. But this rhetoric around such a sensitive issue troubles me.

What is the law about making an adoption order?

The articles did not make any mention of section 21 of the Adoption and Children Act 2002 which sets out clearly that ‘adoption by stealth’ is not a creature known to our law.  A child cannot be placed for adoption unless a placement order is made. There must be court scrutiny of this process and the parents will be involved in this court scrutiny.

The court cannot make a placement order unless:

  • the child is subject to a care order OR
  • the court is satisfied that the conditions in section 31(2) of the Children Act 1989 are met OR
  • the child has no parent or guardian

The conditions set out in section 31(2) are those required to exist before a court can make a care or supervision order:

  • that the child concerned is suffering, or is likely to suffer, significant harm; and
  • that the harm, or likelihood of harm, is attributable to—
    • the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
    • the child’s being beyond parental control.

This is a high threshold – for obvious reasons. Taking children away from their families is recognised as the most serious interference with people’s family and private lives; it has life long consequences for all concerned.

Section 22 of the Adoption and Children Act sets out that a local authority must apply to the court for a placement order in respect of a child if:

  • the child is placed for adoption by them or is being provided with accommodation by them,
  • no adoption agency is authorised to place the child for adoption,
  • the child has no parent or guardian or the authority consider that the conditions in section 31(2) of the 1989 Act are met, and
  • the authority are satisfied that the child ought to be placed for adoption.

EDIT 13/07/17 – I am grateful for the contributions of Tom Perkins, via Twitter

And its not just the ACA that operates as a fetter to arbitrary State interference or ‘stealthy’ social workers. As Tom points out, the SW profession itself is very alive to these issues of concern :

I feel the FRG review was a missed opportunity to promote the growing movement toward ‘Co Design + Co Production with young people and their parents … I was disappointed there was no reference in the FRG report to the DFE funded Guidance produced by BAAF in June 2013 which provides a very clear and easy to understand guide to the entire Foster to Adopt process. For example, compare P 9 of the FRG report and P8 of the BAAF guidance…..there is a world of difference. 

Tom points out that there is now a ‘very high level’ of scrutiny around section 20 which makes it very difficult for social workers to act ‘dishonestly’. Not only have individual Judges issued guidance on these of section 20 in their areas (see for e.g HHJ Bellamy and HHJ Wildblood QC) some have gone even further and have requested information about the LA’s section 20 population. Tom comments:

[The Judges] demanded and have been given access to the entire S20 population and demanded the following: Details of all new S20 admissions; what are the LA plans at 6 weeks? A detailed report from the LA if there is not a plan to come to Court. A detailed plan for each child who has been S20 longer than 6 weeks. 

This has forced those LAs to look hard and long at their S20 population and the reasons for the original admission. It would be hard to imagine that all aspects of the S20 admission – placement – assessment – outcome – long term plan – parental involvement / agreement / permissions etc., have not been scrutinised. Similarly, a number of LA’s have been revoking PO’s that have reached 12 months and the child not placed for adoption. The Care Plan has been changed to CO + LTF. Similarly, OFSTED routinely examine the S20 population during their monitoring visits / inspections. There is no mention within OFSTED reports of any concerns about parents not knowing / not signing S20 agreements….

For further discussion about the law and practice around adoption see these posts about when adoption is considered necessary. 

Why do I worry?

It would have been reassuring to have had at least some recognition of and discussion of this legal framework in both the Guardian articles and in discussions at the launch of the FRG report. Because without it, and resorting to such phrases as ‘adoption by stealth’ and ‘tricked’, there is a risk that the very dangerous narrative promoted by John Hemming and others gains traction and parents continue to be vulnerable to the bad (and expensive) advice they offer.

Hemming and his acolytes routinely dismiss family lawyers as ‘legal aid losers’ or ‘in the pocket of the LA’ and parents are advised (quite literally) to ‘flee’ the country rather than engage, thus ensuring they are denied access to help and representation that could keep their families intact.

The Family Rights Group is to be applauded for the work they have done and continue to do for parents and children. However, they cannot take the place – and I imagine would never suggest they could – of fully instructed, fully funded lawyers for whom the court arena is a second home.

I am glad that such issues are being discussed, that a brighter light is being shone on bad practice and historic failings. I hope to encourage these kind of discussions with the performance on September 23rd at the Arnolfini in Bristol ‘Happy Families – the conversations we are not having about adoption’

But it would be an enormous shame if one unintended consequence of this debate was to create even deeper distrust and fear of the legal system which remains the only true safeguard against the arbitrary interference of the State.

As Sir James Munby commented at the launch of the report on July 10th

https://twitter.com/SVPhillimore/status/884465934525759488

When they were bad – they were horrid. The dangers of unregulated McKenzie Friends

On 5th January I made a formal complaint to John Hemming about the activities of the Justice For Families group, [JFF] of which (I assume) he remains the Chair. I raised a significant number of very serious concerns, including that the activities of JFF put vulnerable parents and children at risk of harm by facilitating or encouraging them to leave the country rather than face care proceedings.

I have never received a reply to this complaint. Hopefully, now that Mr Hemming is now freed from the demands of his time spent electioneering, he can devote some time to answering the very serious issues I raise about how JFF operates and how it makes money.

I raise this matter again for two reasons. First because of the recent publication of research in McKenzie Friends which worryingly, establishes that they are more active outside the court room, where presumably they are subject to very little scrutiny – or none at all.

Second, because I have received the following information from a Ms Green about Tim and Julie Haines, the two most active and high profile ‘advisers’ for JFF.

I quote Ms Green’s email to me:

I contacted Julie Haines through a Facebook group. She and her husband Tim Haines met with us claiming that although they don’t cost as much as a solicitor, they would need to be paid as they “don’t work for nothing” and need to “pay their bills”.

However, once meeting with the Haines, they soon went through everything and said there would be a very good chance they could get our children back but there would be a cost. That cost was £1,500. We paid two payments of £500 as we met with them at least 2 maybe 3 times.

These payments paid for a pathetic attempt at a “grounds of appeal” and a “Skeleton argument”. Had we have got a hearing at London’s RCJ we would have had to pay another £500. However our appeal was refused.

We didn’t appear to hear from them after that and we knew they still had the major documents (doctors reports, professionals witness statements,etc). We asked for these back and they said at first they would see what the cost was to send them back and insisted they had a tracking number which already meant they had paid for it. We waited week and nothing. Two weeks…. decided to contact them and they insisted it had been posted and that they would check with their post office. I asked for the tracking number only to be ignored.

My texts and WhatsApp messenger soon got blocked. So we contacted them on facebook. Told them we wanted our documents back and began to tell other members on facebook to warn them only to be abused and blocked then removed feom the group. I found a few others who had encountered the same problem with large payments for next to nothing work (we printed everything) and then the theft of our documents. My husband then contacted Tim and all he got was denial and lies. Then told people on facebook our case “was never going to be successful” yet soon took our money and built up our hopes knowing we lent this money from my pensioner mum and that money was the last of my dad’s from when he died.

They insisted we go to “bank of mum and dad” but they fooled us into thinking we would win this and we didn’t. We travelled to [REDACTED] to them for all this. As much as we love our daughter so much, we now wished we didn’t bother to go to the Haines as we were just desperate targets.

We threatened [to go to] the police and they told us to go ahead, that they wouldnt find anything there. Told us also is we persisted to “harass” them, they would take us to court. So they now go on to make thousands from desperate families for rubbish knowledgeless court bundles and empty promises.

 

In 2010 I had a run in with the Information Commissioner after I left two files of confidential documents in my car. They were stolen after my car was broken into. I was very lucky to escape with a reprimand, rather than the £40K fine which could have been imposed on me as a data controller. The ICO told me that if this happened again, my career would be over.

And this is absolutely as it should be. If I want the status, the interesting work and the money that comes from holding myself out as someone capable of dealing with people’s confidential information and advising them at the most difficult times of their lives, I have to hold myself out to be accountable. If I fail to meet the necessary high standards demanded by my profession. I should be removed from that profession, to protect those vulnerable people who might otherwise fall victim to my incompetence.

So what redress do vulnerable parents have against JFF or the Haines? Are they registered with the ICO as data handlers? What processes does JFF have in place to keep confidential information safe? What is their charging structure? Are they insured? What training do either Tim or Julie have?

We don’t know the answers to any of those questions. JFF and the Haines are utterly unaccountable, offering ‘services’ to the desperate and vulnerable with no guarantee of quality or redress if they get things wrong.  This is simply wrong on every level.

As I doubt very much Mr Hemming will ever answer my questions, perhaps he and the Haines can do what they have been threatening for over a year – take me to court for ‘defamation’. So these issues can be ventilated in open court and a decision made about who is telling the truth.

EDIT – GUIDANCE FOR THOSE CONSIDERING APPROACHING A MKF

See this article I wrote with Paul Magrath and note in particular the questions we think you should be asking:

What questions should I ask?

For those who cannot afford legal representation however, a good quality McKenzie friend can be a real help. We suggest that any one looking to get help from a McKenzie friend should consider the following questions and issues.
1.What are their credentials? Have they been trained in any related or relevant profession (not law, but maybe accountancy, police or social work)?
2.If they charge, how much are they charging and for what?
3.Have you checked whether you could get a similar service from a lawyer? (Some lawyers will “unbundle” services to provide, say, a consultation to help identify the issues in the case and how best to prepare the paperwork.)
4.What level of experience do they have in the kind of proceedings you are engaged in?
5.Can they provide references? Does their website include testimonials and, if so, can you check them?
6.How did you find them? (Or did they find you?) Have you googled them, checked Facebook, LinkedIn and other social media for comments by or about them?
7.Do they have an agenda? If they are from a volunteer organisation, what is their reason for volunteering? Are they promoting an agenda, and if so, does that accord with your case or might it be a distraction?
8.Have you searched on BAILII or other legal websites to see whether they have been cited or referred to in judgments – either adversely (such as those quoted above) or with approval (though it is rare for judges specifically to mention McKenzie Friends unless they cause trouble).

Further reading

AEY v AL (Family Proceedings Civil Restraint Order) [2018] EWHC 3253 (Fam) – discussion of how and when civil restrain orders can be made to prevent unreasonable litigators taking up the court’s time.

 

The conversations we are not having about adoption – and how we could have them

On 23rd September 2017 with curiosity and trepidation, I will become a ‘performer’ in a ‘unique live oral communication performance’ created by the artist Pamela Neil (www.pamelaneil.co.uk), looking at some of the issues around child protection and adoption.

In this performance piece I want to explore important questions that are not being raised publicly, such as – can we ‘make’ happy families? Do we need to ‘rescue’ children or should we be trying to keep unhappy families together?

And probably most fundamentally of all – can we impose identity on a child? What IS our identity? And what does it do to us – as individuals and as a society – to see the identity attached to our birth family be destroyed or altered by the state? When does the price to pay for child protection simply become too high?

I was attracted to this unique art form, creating a live oral communication performance about adoption, because it’s become very clear to me over the years that the necessary public debate about these issues keeps stalling and stagnating around the polarised positions of those who feel very strongly that their experiences and understanding represent the only truth.

Attempts to broaden debate and understanding often falter because when the debate pushes so many emotional buttons, attempts to make a particular argument often seem to end up being a barrier to communication rather than opening a door to greater understanding and awareness – its not so much the FACTS that win hearts and minds but the FEELINGS they create.
Is it possible therefore to come at this from another angle? Not the dry legal approach which has informed my training and professional life – but trying to shine a light on the issues in another way?

One of the most important benefits of any performance or work of art must be how powerfully complex thoughts and ideas can be communicated to an audience; straight to the heart, rather than draining our interest in a dull legal lecture and PowerPoint.

 

Where and when

I have no idea if this will work, but whatever happens I am sure it will be interesting and I am really excited about the venue!

I hope you can join me at ‘happy families, the conversations we’re not having about adoption’, 18:30 – 20:30

Saturday 23 September 2017 Arnolfini Gallery Bristol UK.

Tickets are free and you can register here via EventBrite 

Seeking help for adopted children should be safe

Living with the long term effect of abuse and neglect.

This is a post by an adoptive mother, who shall remain anonymous.

Adoption is a cornerstone of social policy in the UK for children living with abuse and neglect, and without legal reform, adoptive families are at high risk of having their children removed as a crisis measure when they seek help for a child’s extreme difficulties as a result of earlier abuse/neglect. This piece is written by an adoptive parent and many of the experiences described may be common to parents of children with disabilities including cognitive disabilities and mental health difficulties, who seek help in the form of respite or specialist support for challenging behaviour.

A new round of joint targeted inspections by Ofsted, the Care Quality Commission, and probationary inspectorates into the impact of childhood neglect, will have begun this month focussing on middle age children (age 7-15) who are at risk of exploitation and/ or showing challenging behaviours (Community Care, 17th April 2017). The impact of childhood neglect may last a lifetime and it is not clear whether the inspections will focus solely on children whose needs for love and care are not being met currently and children that may have entered the Care system for reasons of neglect and abuse, and they and their carers are living with the effects of previous neglect.

As an adoptive parent I know that neglect can occur in isolation but often involves abuse too. Concerns were raised by the Selwyn report (2014) about adoptive families accessing appropriate support for what can be extremely challenging behaviours, well beyond the bounds of normal parenting, stemming from abuse and neglect. The report identified that parents struggled to access services, especially crisis support, and that children’s disabilities are often not recognised or acknowledged in adoption, in terms of accessing post adoption support and services, even for relatively well known conditions such as autism.

My son experienced profound early life neglect and abuse. When problems emerged in the early years of adolescence and I reported problematic behaviour that was clearly related to my son’s abuse history, it seemed removal, which neither my child or I wanted, was the only option considered by the authority. Only after a period of several years, and a number of court proceedings, did my son return home with no public law orders in place, and when this happened our reunification was not planned or supported. We found ourselves back to square one, albeit with a capped Adoption Support Fund, that we had been unable to access whilst my son was living away from home. The Pathway team say that their support, which runs out 6 months after Supervision Order discharge, is not for young people like my son, who live with their family. As a result of our family’s experiences I believe that the child protection system, particularly as it relates to adoptive families, needs to change. It seems too divisive of parent and child and totally unsupportive of parents reporting and seeking help.

These are my thoughts.

Reporting of problems needs to be safe

There should be an expectation of support for parents dealing with challenging behaviour, especially in the child’s middle years when the repercussions of removal can be life altering. We cannot have a situation – which we have now – where there is fear to report the problems because the consequences of reporting may be worse than keeping silent.

Recognition that removal of the child brings its own new set of problems

Removal of children from their home and family, sometimes, at a great distance, may solve the problems (although this may be necessary), but more problems may be created when the focus remains almost exclusively on risk and if intervention continually comes between parent and child. Risks and benefits need to be carefully considered, with parents involved, and both short and long term outcomes need to be thought about.

Children can be traumatised by their removal from family, feel rejected and frightened by the enormity of what is happening to them, and they can express their frustration towards those it is safest to do so with – their parents. There will be a natural move towards independence in adolescence and parents can be pushed away by their child and at the same time find themselves marginalised by the responsible authority. Identity issues come to the fore in the middle years, and in adoptions, the approaches taken can push a child or young person to seek contact with birth families. This is in itself an emotionally intense situation to deal with and the reasons for the child being taken into care may have not been addressed. Risks can be far greater than they ever were before.

Recognition that reunification can be problematic after a child has been in care

One recommendation of the Selwyn report was that reunification should never be ruled out – but coming together as a family can be problematic after a child is living away from home, especially after a Care Order is made, for example, if secure accommodation was needed.

Law orders and court proceedings should not be an obstacle and barrier to family life for the child, particularly children living with neglect. Family life, and parental love can offer protective benefits and ameliorate risks associated with neglect.

Reunifications can be especially challenging if a child has suffered corporate trauma or negligence as a result of their being in care and it is highly unlikely this will be recognised by the agencies involved.

Infrastructure change and new models of support are urgently needed

New models of support are required, to support the family as a whole, when middle age children exhibit challenging behaviour resulting from neglect, trauma, disability and cognitive impairment. Timely respite and periods of separation may be necessary and it should be much easier to come together again afterwards. Infrastructure and legislation must support partnership working with agencies and authorities. It is regrettable in my view that adoptive families cannot access the ASF (Adoption Support Fund) – administered by Mott MacDonald, if there is no intention to reunify on the part of the local authority – and that this fund, recently capped at £5k, is only accessible through the local authorities. Effectively this can mean that adoption support via the ASF is potentially not available to the adopted children and families that need it most.

An approach that sees parents blamed and removes children instead of supporting families is not just a systemic failing, which sees the Rights of the Child violated, it is likely to be extremely costly. Residential care costs £3k per week on average according to a recent review by Sir Martin Narey. Parents are key to the future welfare of their children, especially so where there is previous neglect, abuse and disability, and they should be seen as a resource. Committed parents are not adversaries of our children or the state. Legal reform is needed so that we are not treated as such, and the decisions, actions and performance level of agencies can be better scrutinised, with repercussions for organisations where there has been corporate negligence.

Finally, becoming an adoptive parent has been the best thing that I’ve done and I believe in the Care system. I want no child to enter it who does not need to be there and I want the Care system to have the capacity to meet the complex needs of the children who enter it. Without comprehensive change for children in need, at the edge of Care, including children who have been adopted, living with the long term effects of neglect, I believe that this dream of a Care system ‘fit for purpose’ will remain just that – a dream.

The Death of Family Mediation

Family Law Mediation: Dead Man Walking

This is a post by Sarah Phillimore from a talk delivered to the Western Counties Branch of the Chartered Institute of Arbitrators on 27th April 2016

In the ‘Virginia Lawyers Weekly’ from April 2016 I read an interesting article by Chris Macturk.

In Tomorrow’s Lawyers, Richard Susskind writes, “It is exciting and yet disconcerting to contemplate that there is no finishing line for IT and the Internet.”
Susskind’s observation is equally applicable to the future of family law mediation. Like the Internet itself, there are ever-expanding and seemingly endless options to consider — options born of rapidly evolving applications of new and developing technology and clients’ desires for more access to a greater diversity of dispute resolution opportunities at a lower cost.

Clients’ desires for more access to a greater diversity of dispute resolution opportunities at a lower cost

That one sentence for me sums up the potential problem with promoting mediation upon family disputes. So many assumptions are packed into one short sentence. I think unpicking those assumptions will help me explain to you why I have problems with mediation offered as the solution in acrimonious family law problems.

The drivers behind the push for mediation

Mediation as a form of dispute resolution has a long pedigree. Mediation has for many thousands of years been recognised as a much more palatable option than fighting in out in court. Confucius, who died around 479 BC considered that the “first best” and socially proper way to settle disputes, used by the “superior man,” was by the method of mediation, following the ethics of the “middle way.” This consisted in bringing the disputants to something they both approved as the settlement of the dispute, by means of an intermediary.
That for me encapsulates the heart of mediation as I understand it – it is something the participants willingly engage in, with genuine desire to reach a settlement. The mediator does not impose upon the participants a framework other than basic courtesy. The participants will discover in their interactions a solution they can both live with.

This ancient wisdom began to be promoted in the legislative framework around family law with Part III of the Family Law Act 1996 which required those who wanted public funding to at least consider the prospect of mediation.

This was re-stated in the Access to Justice Act 1999 where the criteria set out in the funding code shall reflect the principle that in many family disputes mediation will be more appropriate than court proceedings.

Under section 10(1) of the Children and Families Act 2014, it is now a requirement for a person to attend a Mediation Information and Assessment Meeting [MIAM] before making certain kinds of applications to obtain a court order. There are exemptions to the requirement to attend for an MIAM and I will have a look at these later, as I think these are in interesting window into explaining how and why mediation will often not be the right option in family disputes.

However, even though few could disagree that it must be better to resolve one’s disputes with the aid of a ‘neutral peacemaker’ rather than embark on bitter and expensive legal proceedings, I think it would be naïve to assume that various Governments have promoted mediation because it is less emotionally stressful for participants. It is clear that the primary driver behind the push for mediation is that it was much cheaper than litigation.

As Chris Macturk points out, online dispute resolution has been remarkably effective in dealing with relatively uncomplex commercial disputes and – excitingly – has required no human intervention:

Online Dispute Resolution (ODR) has existed for many years, with perhaps its origin and infancy credited to eBay’s ODR process through SquareTrade which began in 1999. SquareTrade’s technology provides the opportunity for parties to resolve disputes concerning eBay purchases with or without the aid of a mediator.
A staggering number of disputes have been resolved using ODR. Modria, a newer ODR provider, states on its website, “Our founders created the online dispute resolution systems at eBay and PayPal which have processed hundreds of millions of disputes, 90 percent through automation – without human intervention.” While technology can increase access to justice at a lower cost, resolving a dispute over whether a Cabbage Patch doll was really “like new” doesn’t seem to compare to the difficulties presented in disputes involving real children. Even so, ODR is currently being offered and attempted for family law matters.

And here we have the roots of the problem. That far too much weight is placed on mediation as a solution in acrimonious family disputes. It cannot bear this weight and it buckles.

LASPO and what happened afterwards; mediation abandoned

To put the history of mediation applied to family proceedings squarely in context, we need to look at the Legal Aid, Sentencing and Punishment of Offenders Act 2012. If you want a clear summary of the genesis of this Act and its ‘seismic impact’ I recommend the ICRL blog

In essence, this Act removed large areas of law from the scope of legal aid, including private law disputes around children. The most notable impact of this has been the rise in numbers of litigants in person (LiPs), whose lack of legal knowledge and training has in turn caused two further developments;

  • cases involving LiPs take far more judicial time to resolve;
  • removal of insured and regulated lawyers has caused a considerable growth in the number of paid McKenzie friends (people who can get the court’s permission to attend to help a LiP by –for eg. Taking notes. They can address the court but only with permission). Some of these people are good. Some are terrible. None are regulated.

Matthias Mueller reported in Family Law in 2016 . The latest Family Court statistics published today (31 March 2016) show that the proportion of cases with unrepresented parties is continuing to rise.

The figures published by the Ministry of Justice, covering the period of October to December 2015, show that around the time that the LASPO reforms were implemented there was a marked increase in the number and proportion of cases where neither party are represented, with an equivalent drop in the proportion of those cases where both parties were represented.
The proportion of parties in private law cases without legal representation currently stands at 36%.
A report published earlier this week by the Citizens Advice Bureau, Standing alone: going to the family court without a lawyer, found that 9 in 10 people forced to represent themselves in court claimed that it had a negative effect on at least one other aspect of their life.
Last year the Justice Select Committee highlighted how the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is causing enormous strain on the family courts and poorer outcomes for those going through the justice system. It concluded that the changes to civil legal aid have meant that many people, including those that are most vulnerable, are no longer able to access justice.

But none of this was supposed to happen. What was supposed to happen is that people in disputes over their children would take to mediation. They would finally realise there was a much better way to resolve their problems by expensive adversarial fights in court. The reality however, was starkly different.

Mediator Marc Lopatin had a look at the statistics for an article in Family Law on 24th January 2014:

In 2013/14, the number of mediation starts plummeted by 38% following the removal of legal aid from family lawyers for most family law matters.
Practitioners will recall that in pre-LASPO times lawyers first had to make a compulsory referral to mediation before being allowed to access the next pot of legal aid. As a direct result, there were 13,609 mediation starts in 2012/13. With that requirement removed, this fell to 8,400 in 2013/14.
Not surprisingly, the fall in numbers gave way to a massive £16.8 million under spend by the MoJ on family mediation in 2013/14. One would imagine this to be extremely embarrassing for MoJ top brass given this is one saving they weren’t looking to make!
… Another illustration of policy failure is the paltry amount paid out to family lawyers for supporting clients at mediation with legal advice. The MoJ paid out a grand total of £9,000 to lawyers claiming ‘Help with Mediation’. That’s less than the price of going to court for a many private divorce client. And it should also be a cause for concern given decisions taken at mediation need be informed.
The answer is simple: pay legal family lawyers an acceptable sum to support mediation as a legal adviser. At present, the LAA offers lawyers £150 to perform this function. No wonder unbundled services replaced referrals to mediation in 2013/14.

Taken as a whole, the data makes the clear case for voluntarism over compulsion when it comes to success at mediation.

So, without lawyers to shepherd clients into mediation, their numbers plummeted by 38%. Those parents deprived of lawyers, were NOT turning to mediation. They were going to court as litigants in person or turning to paid McKenzie friend to help them in court.

The Cafcass statistics bear this out

We can see the impact of LASPO – court cases fall. But then rise again.
• Between April 2013 and March 2014 Cafcass received a total of 46,636 new private law cases. This figure shows a 2% increase compared with the previous financial year.
• Between April 2014 and March 2015 Cafcass received a total of 34,119 new private law cases. This figure shows a 27% decrease compared with the previous financial year.
• Between April 2015 and March 2016 Cafcass received a total of 37,415 new private law cases. This figure shows a 10% increase from the 34,119 cases received in the previous financial year.
In March 2017, Cafcass received a total of 3,907 new private law cases. This is a 16% increase on March 2016 levels. 3,907 rejecting mediation.

What was hoped for – didn’t happen. Why did parents not embrace mediation?
There seems little doubt that mediation by 2013 was well established and known to be successful. For example, in England and Wales, the Civil Mediation Council (CMC) was established in 2003 to promote the merits of commercial and civil mediation, and to represent the interests of mediation providers. Currently, the CMC has a membership of some 70 provider organisations and 400 individual mediators. National Family Mediation asserts that its providers deliver around 30,000 mediations in England and Wales per year, with full agreement being achieved in 83% of cases.

The Family Mediation Council describe mediation simply as:

Mediation can help you stay in control. No-one will make you do anything against your wishes. The mediator will help you find a solution which works for you both and explain how you can make an agreement legally binding.

This sounds great. Who could argue with that? But as we can see from the statistics, there is a worrying indication that people are not seeking mediation but would apparently prefer to be a litigant in person in an adversarial and frightening court environment with which most will be entirely unfamiliar. Why on earth do people do this to themselves?

MIAM Exemptions

The exemptions to the MIAM requirement I think provide a useful starting point. These are an interesting blend of practical and emotional difficulties. They emphasise that family disputes encompass a very wide range of personal, environmental and external difficulties – of violence, poverty, lack of transport for example. These are highly unlikely to feature in any commercial dispute.
• You, or the other party, has made an allegation of domestic violence against the other supported by clear evidence, for example either a police investigation or an injunction being issued within the last 12 months. (some mediators tell me they would take these cases; I think they are fools. An abusive person is simply seeking an arena to continue abusing – mediation provides a great arena! Mediation where there is significant imbalance of power is dangerous)
• The application you want to make to the court relates to other family law matters which you are currently involved in.
• An application to the court needs to be made urgently because there is a risk to the life or safety of the person who is making the application (the applicant) or his or her family (for example, their children) or his or her home.
• The dispute is about money and you or your husband, wife or civil partner (the respondent) is bankrupt.
• You and your husband, wife or civil partner are in agreement and there is no dispute. [???]
• You do not know where your husband, wife or civil partner is.
• You wish to make an application to the court but for certain reasons you don’t want to tell your husband, wife or civil partner in advance.
• You are currently involved with social services because there are concerns about the safety and wellbeing of your child or children.
• You can’t find a mediator within 15 miles of where you live, or you have contacted three mediators based within 15 miles of where you live and you are unable to get an appointment with any of them within 15 working days.
• You or your partner cannot access a mediator’s office because one of you has a disability. However, if the authorised mediator can provide the appropriate facilities then you will both still be required to attend the meeting.
• A mediator shows on the court form that mediation isn’t suitable, for example the other person isn’t willing to attend a MIAM.
• In the past four months you’ve tried mediation but it hasn’t been successful. A mediator has to confirm this and state that mediation is not the best way for you to resolve your dispute.
• You or your partner do not normally live in either England or Wales and therefore cannot be considered as “habitually resident“.

To ‘make’ mediation work in many family disputes I think runs a serious risk that mediation will have to develop into something very different and will need to move away from its guiding principle that of voluntary engagement. So whatever it becomes, it won’t be mediation.
Have a look at the Australian experience, in moving mediation on line. Thanks again to Chris Macturk:

Australia’s Family Law Act 1975, as amended by the Family Law Amendment (Shared Parental Responsibility) Act of 2006, provides that all persons who have a dispute about children must make a “genuine effort” to resolve that dispute by family dispute resolution before they can litigate.

The potential benefits of such a law aside, FamilyResolve allows parties to participate in a live, three-party videoconferencing session using a link sent via e-mail in satisfying this requirement. Further, with the use of technology, the mediator has a considerable range of options to help control the mediation session, options which would not otherwise be available in a face-to-face meeting. According to FamilyResolve’s website, “The mediator has the technical capability to allow both parties equal speaking time, to mute a party, so the other party can speak uninterrupted, as well as hide [a] participant’s visual web- cams.”
This is quite a shift from face-to-face mediation and begs the question if a mediator should be able to press the “mute” button or “hide” one of the parties to a mediation.

Whoa. Wait a minute. This isn’t mediation as I understand it. Refusing to allow one party to speak – to ‘mute’ them – seems to me highly inimical to what mediation is supposed to be about – providing a forum for the participants to identify their own solutions.

And I am afraid, this is the beating heart of most difficult family law disputes. It is that people don’t feel heard. And when people don’t feel heard, they often shout louder and dig their heels in harder. And they are often completely irrational, albeit genuine. Family law disputes strike at the very essence of our humanity. You are not just dealing with an argument about who drops the children off where and when. You are often dealing with the whole toxic emotional fall out of a relationship that crashed and burned, taking with it parties’ self respect and hopes and dreams for their entire futures. It’s big! It’s heavy!

Go back to what Marc said, when looking at the woeful post LASPO stats: Taken as a whole, the data makes the clear case for voluntarism over compulsion when it comes to success at mediation.

If what the government was hoping was that mediation could take of the role of state coercion when parents wont agree about what’s best for their children then what we have ended up with is a really frightening example of the law of unintended consequences. We now appear to have the worst of all possible worlds; disputes over children conducted by litigants in person in adversarial court proceedings.

What can we do about it?

Am I encouraging people to rush off to court? Of course I am not. I am not attempting some simplistic binary reduction‘mediation bad’ ‘litigation good’. The court environment is probably the last place that angry, upset people should be. But this idea that family mediation can work only if parties are ‘muted’ or otherwise coerced into attending is to me quite offensive.

Some cases are going to require the formality of the court arena, with both sides being allowed to argue their case and then a judge imposing a decision upon them, with the power to enforce if necessary. Mediators aren’t counsellors. Some people simply bring into the room with them too much emotional pain or denial to allow a mediation to proceed in any kind of constructive way.

And my own professional – and I am sorry to say personal – experience of mediators who claim to be highly skilled at managing this kind of situation, is that they are kidding themselves.

I conclude with the words of family law blogger Lucy Reed

I have many criticisms of how mediation IS – of the rigour and cost of its training, of the effectiveness of its regulation and of its business model and of its suitability for all cases – but those are all things about the *state* of mediation not the principle (or the people). I emphatically recognise mediation as a valuable and effective solution for many families (although not all). There is a place for both law and for mediation. We do not need to set ourselves up in opposition.
Indeed, I recall from my mediator training, in between the torture of neuro-linguistic programming and egg-sucking flipchartery (lawyers are allergic to flipcharts, this is our greatest weakness), we were told that mediation worked best in the “shadow of the law”. This is so crucial. People reach consensual resolution (in or out of court) on the basis of an informed understanding of their options, the risks and the alternatives. The two options of mediation and law are symbiotic not antipathetic (and of course there are many others such as arbitration).
I want to give a small illustration of my perspective of the current climate in which mediation operates before I go on. I recently dealt with a FHDRA at a court running an in court mediation scheme. I won’t give detail but suffice to say that the “voluntariness” of the mediation involved us being told the court had decided we were going to mediate, and the confidentiality of the mediation was entirely breached when the mediator told the court exactly what had transpired without the consent or prior notification of the parties. That is two of the pillars of mediation ridden roughshod over. This I hope is an aberration, but it is for me indicative of how much we’ve lost our way with our evangelism about the promotion of mediation as “the answer”. Mediation is brilliant for some and disastrous for others.

I suppose that all I am asking, is all I ask in every field of human endeavour; that from time to time we lift our eyes from our agenda and look around and ask ourselves honestly – what do we want to achieve? And what is the best way to achieve it?
To accept that mediation is cheap and successful indeed – but only where parties enter into willingly and both desire to reach an agreement. To force mediation upon the unwilling or the angry is a dreadful corruption of the very essence of mediation.

Hewson: We have a problem – online harassment and how we just don’t deal with it.

EDIT DECEMBER 21st 2019. 

On Wednesday 18th December 2019 Ms Hewson was suspended from practice for 2 years with immediate effect after admitting two charges of professional misconduct. See this article from Legal Cheek for more details. 

I am not ‘glad’ this happened and I am certainly not ‘glad’ it took so long for the profession to do something about it. But I hope its over now.  If I continue to face harassment and abuse from this or any other individual that I can identify, I will take action in whatever arena seems the most suitable. 

I support freedom of speech. It is however subject to immediate and obvious limitations and the civil and criminal harassment laws are just one. 

This is a post by Sarah Phillimore. It is grimly apt that I publish this during National Stalking Awareness Week. 

Too long; didn’t read – SUMMARY

No doubt some will dismiss what follows as trivial:  ‘handbags at dawn’ type spats or an amusing potty mouthed barrister. Judge for yourself. I set out below the ‘timeline’ I prepared for the police covering what happened between August 2016 – March 2017. Its worth noting that from 4th September 2016 to early March 2017 I had no contact with Ms Hewson on or off line. so whatever was fuelling her, it wasn’t direct provocation from me.

I hope that the majority, after reading what I set out here, will agree with me – something very wrong happened here. It should have been dealt with, it should have been stopped. It was not.

This has potentially very serious ramifications. Ms Hewson’s continued pubic vilification and intimidation of anyone who displeases her, must have the impact to both seriously diminish public trust in the Bar and cause real pain and suffering to those individuals she targets. As little or no help is forthcoming from any outside agency, If her victims respond in kind out of fear or frustration, they will themselves be labelled  ‘abusers’. That is exactly what happened to me; the police have been clear I have lost my status as ‘good victim’ by responding on occasion.

The failure or inability of any external agency – be it Chambers, the BSB, the police or Twitter itself – to take any kind of effective action to control this behaviour, shines an uncomfortable light on our collective inability to respond to abusive behaviour in the internet age. Social media is hijacked by those who wish to display and promote their own personality disorders. We witness yet another example of the slow, lingering death of public discussion.

But as with every harsh experience, I have learned some valuable lessons. For example, I have learned that the law will provide me with protection only if I can afford to buy it. That my professional obligation to refer wrong doing to my regulator means nothing, as they will not act and will not explain their failure to act.

EDIT The BSB finally replied to me at 17.46 today. They do not accept they failed to act with expedition in investigating my complaint. They had to take time to consider whether or not repeatedly calling me a ‘cunt’ on line was Ms Hewson exercising her right to a private life. I will treat this justification with the silent contempt it deserves. 

As I cannot afford civil litigation – this is my response. This will be my final word on the matter. I have gazed into the Abyss for far too long already. There are some very sad and damaged people online and they do enormous harm to others – and themselves.

I hope that this post may help some others feel less alone. I hope it may also prompt some much needed thought and discussion about exactly how we manage our interactions on line. This online world is far too rich in opportunity for learning and discussion to simply hand over to the rule of the mad, bad or sad.

EDIT 14th March 2018 I am pleased to report that Hewson’s attempt to have the Metropolitan police deemed ‘irrational’ and unlawful in their issue of a ‘PIN’ or Police Harassment Letter, was dismissed – the court confirming that it is important to remember that Article 10 is a qualified right. See the judgment here. 

Truth, Lies and Intimidation

A brief background

In May 2016 I made the rookie mistake of engaging with Barbara Hewson on line, criticising her view that family lawyers were all collusive and inefficient.  I wrote a blog post about it .

Hoaxtead Research also wrote a very clear summary of our ‘dispute’ and how my mild banter and criticisms were met with a barrage of offensive and untrue on line publications from Ms Hewson, which she shared far and wide, purposefully designed to frighten and intimidate me.

So far, so internet. But it will stop soon I thought. This person is a professional. Surely she can’t keep doing this? But she did. After 7 months and after I had spent nearly £2K on solicitors letters, made numerous complaints to her Chambers, 12 complaints to Twitter, 3 complaints to the Bar Standards Board, and finally to the police, who issued a harassment warning notice against her in March 2017 – she is STILL going strong, like a demonic Duracell bunny.

See the timeline below for further detail, but a non exhaustive list of Hewson’s abusive behaviour directed at me since August 2016 to date includes:

  • repeatedly publishing my photograph with insults attached  – ‘fuck off madam’
  • linking insults directly to and about my Chambers
  • foul, abusive language – for example, calling me a ‘nasty C**t’
  • encouraging one of her criminal associates to email me and a senior member of my Chambers directly and threaten to report me to the police
  • publicly discussing my sexuality on line with a man who I know to be a sexual abuser of women and girls (this man then takes to Facebook and repeats that I am an evil lesbian and ‘pure shit’)
  • continually making references to my daughter when she knows full well that her tweets are ‘liked’ and ‘retweeted’ by at least one convicted and unrepentant paedophile.
  • inciting her followers to target me – ‘will no one rid me of this McCarthyite barrister?’
  • targeting anyone else she perceives as supporting me and publishing abuse directed at them via Twitter or sending threatening emails to them or their employers.

I have been subject to serious abuse, but others have fared even worse. They have wished to retain their on line anonymity but been ‘outed’ by Ms Hewson who has no problem at all with posting people’s real names and email addresses, despite her very keen appreciation that her own privacy be respected. One particularly repulsive example of this kind of behaviour was her repeated publication of photographs of the children of at least two of her adversaries, with insulting comments attached.

I note that some of those people on the receiving end of this, have themselves behaved in a reprehensible way and subjected Ms Hewson to repeated on line harassment and trolling. I do not condone this behaviour from anyone. I do not act ‘in support’ of them or at their behest – as Ms Hewson consistently alleges. I knew nothing of them at all until June 2016 when I began to take a keener interest in the nature and extent of Ms Hewson’s on line abusive behaviour.

Ms Hewson has a right not to be abused on line. Anyone who does so is wrong and should face consequences. However, to behave as she did was without any kind of rational justification, no matter what her claimed provocation. Many of the people she targets on line are vulnerable and have mental health difficulties. She surely has the financial and intellectual resources to seek proper, and less public, redress against those she considers to have defamed or harassed her.

Her justifications for her behaviour are varied and weak; Ms Hewson has repeatedly claimed the defence of ‘freedom of speech’ when insulting and defaming me, or that she is indulging in ‘parody’ or ‘satire’. I should not have had to spend nearly £2K of my own money to point out that I do not accept she can legitimately claim ‘satire’ for discussing my sexuality in public with a man known to have sexually and physically abused women and girls. Further, it is simply absurd to claim – as she does – that  ‘freedom of speech’ an absolute and unrestricted right. It never has been, and in any kind of healthy society never could be.

She has claimed that when she insults me it is as ‘writer’ not as a barrister – but recent BSB guidelines on use of social media for barristers has hopefully kicked that one into touch. We are bound by Core Duty 5 AT ALL TIMES – not to behave in a way which would cause public trust in the profession to be diminished.

On January 30th 2017 she extended her harassment of me to the national press making a variety of dishonest assertions to the Times, including that she had reported me to both the police and the BSB. This was a lie. But no doubt one believed by those reading the article, to the further detriment of my professional reputation and integrity. The Times published a further article on April 12th detailing allegations that she had sent death threats to a student. Ms Hewson is apparently going to sue the Times for defamation but the time of publication (April 25th) I have heard nothing further about that. I have contacted the Times and offered my support in defending any such action. Because everything I say is true.

A big part of why this has been so difficult to bear is the absolute breathtaking hypocrisy demonstrated by Ms Hewson. Whilst holding herself out as a warrior for Freedom of Speech and writing for the online journal Spiked whose guiding principle is ‘freedom of speech – no ifs or buts’ , Ms Hewson has been assiduous in her efforts to silence those who disagree with her by threats, abuse and other forms of intimidation.

 

A failure by Regulators to Regulate.

Unpleasant and abusive people on line are common. The real issue here, for me at least, is what this sorry saga has revealed about the ability or willingness of the BSB to do its job.

I have made three complaints; on 14th September 2016, 7th February 2017 and 6th March 2017. The BSB have requested I get further evidence from ‘persons of standing’ to back up my complaints. In light of how Ms Hewson behaves, it is unsurprising that none of the 9 people I asked felt able to help me. Some expressed serious concerns about the impact on either their mental health or their employment, should they make complaint against Ms Hewson and risk incurring her anger. I am sad that I do not apparently count as a ‘person of standing’.

Ms Hewson’s decision to take to the national press in her campaign of intimidation, led to the second of my complaints to the BSB in February 2017. However, my first was apparently not even put to Ms Hewson until the 30th January 2017, nearly 5 months after I made it. 

At the time of writing I have not the foggiest idea what is happening to any of my complaints as the BSB have not provided any information, despite repeated requests.

From information Ms Hewson herself put in the public domain in 2016, it is clear that the BSB are well aware of her activities and have been for some time. At least four people have complained since 2014 but nothing apparently has happened. There is – in my view at least – a very real risk that this failure to take any action against Ms Hewson has empowered her to believe that she is untouchable.

I know of no other profession that would tolerate this kind of disgraceful public behaviour from one of its regulated members. How would you feel if your child’s teacher conducted themselves on line in this way? Or your GP? I suspect you would be horrified. Why then are barristers apparently exempt from censure for such appalling and public behaviour?

I made a formal complaint to the BSB on March 23rd about their twin failures; to act with any reasonable expedition to deal with my complaint or to respond to my emailed queries. I was told that I would receive a response by April 25th. None has been received, so I publish this.

Where do I go from here?

I am told that to apply for an injunction under the Protection from Harassment Act will cost me at least £10K. With regard to defamation,  the Monroe v Hopkins libel action was a sobering reminder of the costs those kind of proceedings are likely to incur.

I do not doubt that if I initiated civil action, I would win given the sheer weight and volume of the evidence I have against her – I have now over 500 archived links to her abusive publications on line, along with many emails sent to me and others. But when would I see my costs and/or damages? The little spare cash I did have as a ‘professional loser’ at the publicly funded family bar has now gone on just two solicitor’s letters that managed to stem for too short a time the flood of vitriolic and public attacks on me.

Would I have engaged with Ms Hewson back in May 2016 had I known the full extent of her unboundaried behaviour and that I would receive almost nothing by way of support or action from any other outside agency? Possibly not. But on reflection, I am glad I did. If this whole sorry tale can push individual Chambers and the BSB to greater recognition of the impact of social media and the need to engage with those who misuse it, then at least something positive can come out of this.

Although I count myself as a very resilient person, there have been times throughout this whole process where I have felt very alone and frightened. To be on the receiving end of such targeted harassment from a senior member of my own profession was, initially at least, terrifying. Over the months I have grown a thicker skin but what has really helped was being able to laugh at some of the more ridiculous and childish behaviours publicly demonstrated by Hewson. I remain grateful to those anonymous people on line who helped me gather evidence of her abusive behaviour.

However, while laughter is the best medicine, it does not combat the evil I have identified here, just makes it easier to live with. What has happened to me is happening to many others – some of whom are extremely vulnerable adults. I have witnessed over 7 months now, a disgraceful, public and persistent abuse of power and status; used to intimidate, distress and alarm. And a failure of our regulatory body to do anything about it.

You may not agree with me about how serious you think this is.

And you are entitled to disagree with me.

Unlike Ms Hewson, I will not stalk you, vilify you, abuse you or try to get you sacked if you do.

Time line of harassment by Ms Hewson from August 2016 to 31st March 2017

Mid August to early Oct Ms Hewson subjects me to almost daily harassment via Twitter, including publications of my photograph, details of my Chambers and making various comments that I am a ‘malicious crackpot’, ‘unhinged’ and is sympathetic to those who hold anti-Semitic views.

04/09/16 I cease direct communication with Ms Hewson via social media. All subsequent communications I make are to her solicitors

07/09/16 I complain directly to Ms Hewson’s Chambers. (they reply on 03.10.16 to say they cannot progress my complaint and I need to complain to the BSB)

14/09/16 I make direct complaint to the Bar Standards Board

20/09/16 The BSB confirm they have received my complaint on this date.

23/09/16 Ms Hewson has direct conversation via Twitter with a Mr E, wondering whether I am obsessed with her as a ‘lesbian thing’. Mr E then makes similar and further abusive comments both on Twitter and on a Facebook group. I am very alarmed as I know the identity of Mr E. He has been found by judgments in the family court to have sexually and physically abused his step daughter.

29/09/16 I instruct solicitors to send a letter before action – requesting that Ms Hewson refrain from any further mention of me on social media or I will apply for an injunction.

04/10/16 Unfortunately the letter does not have the desired effect. Ms Hewson late on 4th October, published a significant number of abusive tweets, referring directly to my proposed application and using derogatory terms. Ms Hewson has quoted tweets published by me in August, intending to imply that I am still engaged in conversations with her. This is dishonest.

05/10/16 My solicitors send a second letter before action, setting out very clearly why I am so concerned about her behaviour on 23rd September.

12/10/16 My solicitors send screen shots and archived links to Tweets to Ms Hewson’s solicitors in support of my letter before action, stating that if she does not cease her harassment of me, I will issue proceedings for an injunction. Ms Hewson then refrains from mentioning me directly. I have now spent nearly £2,000 on solicitors’ fees and cannot afford any further expenditure.

31/10/16 I make formal complaint to Wiltshire police about a very abusive email sent directly to my Chambers and two abusive comments left on my blog. I explain that I am concerned that Ms Hewson is directly or indirectly encouraging others to harass me, in light of her own long standing harassment of me.

11/11/16 I meet PC Sarah Greenman of the Wiltshire police at Bradford-on-Avon police station and we agree there is nothing that can be done as they cannot identify the individual who sent the email in October. However, PC Greenman says that if I had reported Ms Hewson’s behaviour of September at the time they would have considered taking a statement from me and arresting her

18/11/16 Around this date I understand the BSB refer my complaint to its Investigations and Hearings Team to look at possible breach by Ms Hewson of Core Duties 3 and 5 of the Code of Conduct.

24/11/16 Ms Hewson’s solicitors contact me to request that I withdraw my complaint to the BSB.

26/11/16 Ms Hewson recommences direct harassment of me on social media, apparently angered that I have suggested to Andy Woodward that he could contact the BSB if he was being harassed on line by a practicing barrister

03/12/16 Mr E attempts direct conversation with Ms Hewson via Twitter.

04/12/16 I email the BSB asking whether recent harassment from Ms Hewson can be added to my first complaint or if I need to make a fresh complaint. I receive no response to this request.

21/12/16 Some bizarre and inflammatory tweets from Ms Hewson saying that her detractors were ‘in the firing line’ and that ‘I hold the gun’. This tweet was reported to Twitter by many users, including myself, as posing a credible threat of violence. Ms Hewson then goes quiet again.
I email the BSB to ask again if I need to make a separate complaint about this or it can be included as evidence for my first complaint. Ms Lall says she will need to speak to her Line Manager and will respond in the New Year.

14/01/17 Ms Hewson’s direct harassment of myself recommences, including making direct reference to my Chambers. I have no idea why; I have not done or said anything to provoke her.

15/01/17 I email Ms Hewson’s solicitors requesting confirmation that I can serve any application for an injunction at their offices. I say I am very concerned that Ms Hewson is in contact with two men who have just been arrested for stalking Esther Baker and an unnamed journalist. These men are Simon Just and Darren Laverty.
I email Ms Lall in the following terms:
1. Do you require me to raise a separate complaint about this and other matters raised with you since November 2016, or can these issues simply be applied to my initial complaint of September 2016 as further evidence of a pattern of on going behaviour?
2. Could you confirm the likely timescales for investigation into my complaint of September 2016?
3. If I do apply for an injunction in civil proceedings against Ms Hewson pursuant to the PHA, or refer this matter onto the police, is the BSB likely to suspend its current investigations and/or delay making any fresh investigations until the outcome of the civil/criminal proceedings are known? I appreciate and understand that the function of the BSB is not to protect my personal safety and your investigations will necessarily take time. It may be that I have to take other action to protect myself and my reputation.
However, I am very anxious not to delay your investigations by any action I take as an individual. My concerns about Ms Hewson’s general fitness to practice are ever increasing and this clearly has implications for very many people other than myself, and to the reputation of the Bar as a whole.

16/01/17 I am emailed directly by Simon Just, who also emails a senior member of my Chambers. It is clear that he has been encouraged by Ms Hewson to do this and has read my email to her solicitors. Later this evening Ms Hewson emails directly a senior member of my Chambers, mistakenly believing he is my Head of Chambers. He forwards her email to me then deletes it and replies to Ms Hewson that he will not communicate any further with her about this.

17/01/17 Ms Hewson emails me directly saying that I am not to correspond with her or her solicitors. That evening I am informed that one of the people ‘liking’ and ‘retweeting’ her abusive tweets about me is Nigel Oldfield, a convicted paedophile. I become very alarmed.

18/01/17 Early this morning I telephone and email PC Sarah Greenman to say I wish to make a formal complaint as the harassment has started again and is escalating. I receive no reply so at lunchtime I ring the Wiltshire control desk who tell me PC Greenman is on annual leave but they will pass a message on.
Ms Lall telephones me that evening and asks that I provide further complaints from ‘persons of standing’ who are concerned about Ms Hewson’s behaviour.

19/01/17 I have a number of replies from people I contact, asking them to support my complaint about Ms Hewson, to say they are too afraid of reprisals. One fears for her job, Ms Hewson having contacted her employer and made a false allegation of misconduct.

20/01/17 Ms Hewson publishes on line part of my email to her solicitors. PC Greenman contacts me and asks me to make a report to the Metropolitan police as this is the area where Ms Hewson resides.

21/01/17 Early that morning I make a report to the Metropolitan police who refer me back to Wiltshire. Ms Hewson continues to make abusive and threatening publications on Twitter throughout the evening and late night, publishing part of my email to her solicitors and calling me a ‘malicious bitch’. PC Greenman replies to my email and we try to arrange a date to meet so she can take a statement.

22/01/17 Ms Hewson continues harassing me via Twitter – her ‘pinned tweet’ invites journalists to contact her regarding me. I email PC Greenman.
I email Ms Lall and request information by Monday 30th January about when the BSB will be in a position to respond to my complaint which they received on 20th September 2016.

23/01/17 In the morning I am contacted via email by Jonathan Ames a journalist for the Times who says Ms Hewson has sent him my email to her solicitors of 15th January 2017 and he asks for comment. I say it would be inappropriate as the BSB are investigating. At about 5pm her Twitter accounts are suspended after complaints from other users. She immediately sets up a third account which quickly degenerates into abusive harassment of various others.
I email PC Greenman

25/01/17 Ms Hewson’s third Twitter account is suspended. I email PC Greenman.

26/01/17 At 1.10 am Ms Hewson emails me directly. I forward this to her solicitors and ask them to remind her not to contact me, and I will treat such communication as further evidence of her harassment of me.

30/01/17 An article appears on page 3 of the Times, quoting my email. I have never given permission for my correspondence to be used in this way. I consider that Ms Hewson has now extended her harassment of me to the national press. I email PC Greenman again, requesting a date to meet to provide a statement. I email the BSB to request urgent information about the state of their investigation.

31/01/17 The BSB email me to say that they have sent a letter to Ms Hewson outlining my complaint against her conduct from May – Jan 17th 2017. She will have 3 weeks to reply.

01/02/17 Ms Hewson’s second Twitter account is reinstated but she ‘protects’ her account so only confirmed followers can see what she writes.

03/02/17 From about 9pm Ms Hewson unlocks her account and publishes a continual stream of derogatory tweets, including one that says, in reference to me ‘Will no one rid me of this McCarthyite barrister? What is wrong with her?’ This is – in my view – direct incitement to her followers. She is tweeting about my daughter. I report her to Twitter for the fourth time (I have since made eight more complaints).

04/02/17 On line harassment continues

05/02/17 On line harassment continues

06/02/17 I attend Bradford on Avon police station and PC Greenman takes a statement.
I make second complaint to the BSB that Ms Hewson is in breach of r69 of our Code of Conduct; she must not victimise someone who has made a complaint about her in good faith.

07/02/17 On line harassment continues

08/02/17 On line harassment continues. I forward screenshots to PC Greenman who replies to suggest I consider meeting with the Restorative Justice Team. I express scepticism but say I am willing to discuss the process with them.
That evening the on line harassment from Ms Hewson is probably the worst it has ever been to date. She compares me to Karen Matthews and says I am a liar and should be struck off. She denigrates my personal appearance. She includes my Chambers directly in her publications. She taunts the BSB directly.

09/02/17 I email PC Greenman and say I would be grateful if my statement could be finalised as soon as possible and forwarded to the Metropolitan police.
My Head of Chambers confirms via email that this matter will be raised at the Chambers Management Board meeting to consider what action Chambers can take against Ms Hewson.
A barrister colleague emails the BSB to express her concern about what she is reading.
Ms Hewson refrains from targeted harassment of me on this date.

10/11/02/17 Late on 10th February and in early hours of 11th February, Ms Hewson publishes large amount of abusive and derogatory material. This is even worse than her publications on 8th February. She is now including a colleague in Chambers, calls us ‘cunts’ and claims we are jealous of her. She tags my Chambers directly in her tweets. She says she is going to publish my complaint to the BSB on line as it is ‘drivel’.
This material remains on line until early evening of 11th Feb and Ms Hewson then deactivates her Twitter account.

12/02/17 At some point Ms Hewson restores her Twitter account, and announces via Social Media that she is retiring from the Bar. She then locks, unlocks and locks again her Twitter account over the next few days.
I attend Trowbridge police station at 1pm to sign my statement and dockets on evidence such as screen shots and blog posts.

13/02/17 PC Johnson of the Metropolitan police contacts me via my mobile to ask for information; he has not yet received any paperwork regarding my complaint.

14/02/17 The Management Board of my Chambers meet to discuss the activities of Ms Hewson.

15/16/02/17 Ms Hewson publishes variety of late night/early morning abusive tweets; including telling me I will ‘rue the day’, I am ‘dodgy’ and ‘evil’. And directly tagging in PC Greenman of the Wiltshire police.
I email Wiltshire police, the Met and the BSB. Ms Hewson has deleted these tweets by about 8am but I have screenshots and archived links.

17/18/.02.17 This evening my HoC confirms that Chambers will write to the BSB to express their dismay that the investigation into Ms Hewson is taking so long, in light of the abusive nature of her conduct and its impact (this letter is sent on 22/02/17).
Late this evening and early morning of 18th February 2017 Ms Hewson emails me directly; first by copying me into email sent to PC Greenman, demanding that I withdraw my complaint to the police; second she emails me directly asking to know if I am registered with the ICO. I forward both emails on to the police, the BSB and her Chambers, as Ms Hewson is using her Chambers address to send emails which I consider to be part of her continued campaign of harassment against me.
I send Ms Hewson’s Chambers a copy of this timeline. I consider it is important that they are aware of the full nature and extent of her activities as the implications for the reputation of their Chambers are serious. I ask if they can suspend or restrict Ms Hewson’s access to their Chambers’ email system.
Later that morning I am told that Ms Hewson has sent ‘cease and desist’ letters to 2 other barristers and a journalist, using her Chambers address in 2 of the 3 emails.
In one email she falsely asserts that I have chosen to publicise our dispute in the national press. I have done no such thing. This is a deliberately dishonest statement by Ms Hewson as the emails between myself and Jonathan Ames on 23rd January 2017 prove.
I obtain permission from one of the barristers and the journalist to forward copies of the emails they received to the police and the BSB. The emails have caused distress to all the recipients.

19/02/17 Linda Turnbull of the Standards Committee of 1 Grays Inn Square emails me to say that they will await the outcome of the police and BSB investigations of Ms Hewson.
That evening there is further relatively mild denigration of me by Ms Hewson on social media.

20/02/17 No on line harassment from Ms Hewson on this day.

21/02/17 From about 11pm further abusive publications; that I am associating with anti Semites, am hysterical and waste police time. My Chambers are directly included in some tweets.

22/02/17 I email the BSB with regard to my second complaint that Ms Hewson is victimising me for making a complaint and ask for clarification as to how to proceed. Do they wish me to make a fresh complaint for each new incident?

23/02/17 I am contacted by DC Adam Downs who leaves a message to say that my case has now been transferred to him at Islington. I email my updated timeline.
More on line abuse from Ms Hewson.

24/02/17 I speak to DC Downs around 9am and he informs me that he contacted Ms Hewson yesterday with a view to issuing her with a harassment warning notice and this probably prompted her abuse of me last night.
I confirm that I muted her account in September and blocked it in January and that I have frequently report her account to Twitter Support, to no avail.

25/02/17 Some mild denigration of me on Twitter in late evening/early morning of 25/26 February.

26/02/17 No on line harassment from Ms Hewson on this day.

27/28/02/17 Some mild denigration of me and direct tagging of Chambers but Ms Hewson does not mention my full name. However, she is clearly monitoring my social media output, as she engages in direct conversation with someone with whom I am having online disagreement and tells him I am a ‘monstrous’ example of feminism and a bully.
Later that day the BSB email to inform me that Ms Hewson has requested an extension of time to reply to my (I assume) first complaint, until 9th March. I reply to ask for a response to my email of 22/02/17 regarding the need to make a fresh complaint. I say that if I do not receive a response from the BSB I will make my third complaint on 6th March, relating to the dates from 06/02/17 – 06/03/17

01/03/17 Email from DC Downs to confirm that harassment warning notice will be served upon Ms Hewson by post, expected to arrive on Friday 3rd March. If she breaches it she will be arrestable.
No on line harassment from Ms Hewson on this day.

02/03/17 No on line harassment from Ms Hewson on this day
I email the Standards Committee of 1 GIS to inform them that Ms Hewson is to be issued with a harassment warning notice.

03/03/17 At 8.50pm I receive email notification from EventBrite that Ms Hewson has purchased a ticket to a conference on 9th June where I am clearly listed as speaking. At 8.51 she tweets that she is going to this conference ‘see you there?’ I am alarmed by this as there is no reason for her to go to this conference other than to attempt to make physical contact with me. She posts various tweets in which I am named.
I email DC Downs and ask that the police now give serious consideration to arresting Ms Hewson as this harassment has occurred after service of a PIN.

04/05/03/17 Late on Saturday night and early Sunday morning Ms Hewson publishes further derogatory tweets, and directs one to my HoC. I forward these to DC Downs.
On Sunday morning I have a telephone conversation with DC Downs who say he has received a 9 page email from Ms Hewson to say that the Met are breaching her human rights. He then emails me to say

I have reviewed these screenshots. Because twitter is a public domain everybody has the right to express their freedom of speech. This is regulated by twitter themselves. Unless you are physically mentioned with the @ sign to your direct twitter account, this does not qualify as harassment of malicious communications.

The harassment warning has been served to Ms HEWSON and remains in place.

Unless there are any direct messages or tweets with the @ sign to your account the police cannot take any further action. However, please continue to record tweets which you believe are aimed at you for any civil proceedings you wish to take.

06/03/17 Having received no response from the BSB to my email of 22nd February and 28th February, I make my third complaint that Ms Hewson continues to victimise me for having made a complaint about her.
The BSB then email after I have posted this complaint to say that I can submit new evidence in support of my first two complaints, rather than make a fresh complaint.
Later that evening/early morning of next day Ms Hewson posts some derogatory tweets about me using my direct Twitter handle. She also contacts the Head of my Chambers Family Team directly

07/03/17 I email DC Downs to request confirmation that the Met will take no further action against Ms Hewson and ask for copies of the PIN and my statement. I am considering applying for a civil injunction as a litigant in person.
Further derogatory tweets later that evening/early morning 8th March including the allegation that I make ‘vexatious, incessant, untrue and malicious’ complaints.

08/03/17 Ms Hewson is challenged by another Twitter user for re-publishing a tweet where this user was called a ‘cunt’. She points out that Ms Hewson is ‘targeting and harassing’ me in a ‘persistent’ way which looks ‘vindictive, malicious and obsessive’.
Ms Hewson refrains from any further harassment of me on this date.

09/03/17-29/03/17 Ms Hewson’s account remains protected and she steadily reduces the number of people ‘following’ her on Twitter from approx. 3K to approx. 100
I am not aware if she publishes anything derogatory about me or my Chambers.  The 9th of March was supposedly the date by which she was to respond to the BSB regarding my complaint but I receive no information about this and to this date remain entirely unaware of her response.

24/03/17 I am emailed by a student, Mehul Desai,  to say he is very distressed that Ms Hewson has been sending him threatening emails very late at night and has contacted his University. Ms Hewson is demanding that Mr Desai remove the publications he has made via Twitter of her correspondence.
I understand that Mr Desai also makes complaints to the police and the BSB about Ms Hewson’s behaviour.

30/03/17 Late at night on 30th or early in the morning of the 31st, Ms Hewson unlocks her accounts and makes derogatory remarks directed explicitly at me, another barrister and my Chambers. She also publishes my photograph again.

31/03/17 I consider making further complaint to the police but when I check Ms Hewson’s account around noon I note that it is protected again. As no one but her now (significantly depleted) numbers of followers can see what she publishes, I decide that I will not report this but will keep an eye on her on line activities and see what develops over the next few days, with a view to making a fresh police complaint if the public harassment continues.

It’s still going on – but enough is enough.  I can only hope now that with her much reduced following and the considerable publicity about her activities, my reputation is protected from her continued denigration. 

The Troubling Role of Trauma in Social Work – a parent’s view.

I am grateful for this guest post from contributor [email protected]. She asks how do social workers perceive ‘trauma’ and what impact does that perception have on their decision making? Are social workers being tempted to make ‘diagnosis’ of conditions that are outside their expertise?

When we see pictures of puppies or kittens we may have a strong impulse to go ‘Aaaah’. When we hear of ‘traumatised/abused/neglected children’ we should feel a visceral sense of revulsion. Social workers working with children will see it as their professional role to make things better for the ‘traumatised/neglected child’ but what does a traumatised/neglected child look like? That can be very hard to assess. At one end of the spectrum the child may be very quiet and at the other end a child may be beyond control and have any number of difficulties from extreme anxiety to violence. Are the problems of such children a result of abuse/trauma or could there be other reasons for their difficulties?

What if a social worker takes it upon themselves to assess the problem and becomes so fixed in his/her views that he/she fails to robustly assess all possible reasons for a child’s difficulties and take any steps he or she can to pinpoint exactly where the problems are? I believe many social workers have reached the point where they are now in danger of making these calls based on their own ‘hyper-vigilance’ around trauma/neglect.

What is trauma?

I must confess I never paid too much attention to ‘trauma’ before social workers entered my life and I began to hear this word again and again. I suppose my idea of trauma would have been a natural childbirth – the most natural thing in the world even if it is challenging when you are going through it.

Social workers seemed to use trauma as shorthand to explain why someone might be having a difficulty. This version of trauma seemed to me to be closer to a therapist’s version of trauma, an emotional wound or rupture that needed to be addressed before the person could move on with their life.

I’ve since had the benefit of hours of support from therapists around the ‘fall-out’ around our family situation so I think I really do now understand trauma – the life-changing, perspective-altering, ‘no-going back, get used to it’ type of trauma but I still have serious reservations about how social worker perceive trauma and the role it plays in people’s lives. The idea of a social worker fixing emotional wounds may help social workers get through a very challenging day but it seems to me to bring with it a number of really quite serious problems.

The danger of scapegoating

I believe that social workers often deal with parents in distress/despair including the ‘just about managing’ who have tipped over into crisis. They may, for example, be caring for disabled children, in poor health, living with violence, carrying debt they have no chance of paying off or in poor/insecure housing and employment. They may also not speak English very well or be dyslexic or have learning disabilities. They may have a whole range of vulnerabilities that they need help with including help parenting a child with unexplained emotional and behavioural difficulties.

I don’t want to make this an article about the destructive effects on families of policies that are ‘rebalancing’ our society so that we all become ‘economically productive units’ but it is a fact that these policies are really hurting many of the ‘just about managing’. Social workers may feel powerless when faced with the effects of these policies and may not have the resources to meaningfully address the difficulties of those affected but it is an undeniable fact these policies are having a hugely detrimental effect on the mental health of many of our children. (See http://www.childrenssociety.org.uk/news-and-blogs/press-releases/nine-homes-by-the-age-of-nine-–-housing-instability-marks-lives-of#163961_20170330102705)

When supporting families in dire circumstances, it is tempting for the social worker to take on the role of ‘expert’, stick a label of ‘incompetent’ on the parent without acknowledging the role of factors beyond the control of social worker or parent on the child’s difficulties. Parenting classes are a rite of passage for parents in this situation. Having being on an excellent but wildly inappropriate Troubled Families Programme this is emotive territory for me. There may be no money for anything else but in my view it is unethical to send parents on parenting courses without a very clear idea of the child’s/families difficulties and how the course will help in all spheres including around personalised health support.

The ‘nature vs nurture’ debate.

Where to start…
Trying to find answers for a child’s difficulties is such a highly contested area and moves well beyond the social work world. This contest is fought out for example in the arenas of genome sequencing and brain scanning and there are also a small number of clinical trials challenging myths that have informed whole policies including policies on social work training. (See http://link.springer.com/article/10.1007%2Fs10803-015-2680-6 ) There are ‘dirty tricks’ including presenting brain scans of children brought up in environments where they have been extremely mistreated,used to evidence harm caused by parental incompetence.

This battle is also fought by people based on their own difficult experiences of childhood or of parenting a child with unexplained and profound difficulties for whom they have been unable to get help. Few players do not have strongly held beliefs or professional reputations at stake.
Clinicians are grappling with the implications of this in terms of clinical practice. Policy makers have identified a tsunami of demand and know there are very limited clinical resources with the expertise to make these calls for individual children.

As an example of the difficulties clinicians face there are two diagnoses for virtually the same set of symptoms. Attachment disorder for the children of the disorganized, unresponsive parent living in poverty that is unable to parent their child successfully (cause – parental neglect) and late diagnosis Autism/Asperger Syndrome possibly with a demand avoidance profile for the children of ‘competent’ parents. (cause – as with all the Autisms largely genetic with a possible in-vitro environmental element).

Fraudsters abound with ‘bleach cures’ and dubious ‘therapies’ and families are desperate for answers. There are virtually no diagnostic paths for Fetal Alcohol Spectrum Disorder. No matter what the circumstances of their parents, it is, in my view, likely that the low priority given to mental health services for children has all-but failed a generation of self-harming, anxiety immobilised adolescents and their families, many with unidentified disabilities and difficulties such as sensory and sleep disorders,. (https://epi.org.uk/report/time_to_deliver/) It is also likely that low self-esteem is a major contributing factor for many children/young people with ‘behavioural’ difficulties. Somewhere in the mix comes trauma – the ‘emotional wound’ type and the ‘neglect’ type and the type you ‘recover from’ and the type you ‘learn to live with but never recover from’. The good news where trauma is concerned is that recovery is often possible with the right support unlike disability which is life-long.

Imagine what is like for a parent really struggling to get help for their child to be told the child’s difficulties are ‘on your head’, caused by ‘trauma’ and by a social worker to boot and yet many social workers believe this is their call.

What is the Social Workers role?

It may or may not be true that there is widespread mis-diagnosis of ADHD, ASD, Attachment and anxiety and similar disorders but it takes another clinician to make this call for an individual child and to generalise you need evidence of widespread mis-diagnosis via randomised clinical studies or equivalent.

I believe when trying to help a young person with profound emotional, behavioural difficulties social workers should be alert, question, look for guidance from clinical colleagues, raise concerns where you have them, provide personalised support to the best of your ability, fight for their clients rights for good support including good clinical support but you should always stick to your area of competency. The ability to make clinical diagnoses as a result of trauma just does not fall within it.