Author Archives: Sarah Phillimore

Taking a child abroad for a double mastectomy

Judgment in the case of Re S (Inherent Jurisdiction: Transgender Surgery Abroad)[2023] EWHC 347 (Fam) was handed down in February 2023.

Sam aged 15 at the time of the application, wanted to travel to Country X to undergo a double mastectomy. Sam had been born a girl but wished to be live as the male sex. Sam and her family had all been born in Country X but had been living in England for some years at the time. On 20th July 2022, the local authority applied for permission to invoke the inherent jurisdiction of the High Court, to prevent Sam travelling for surgery on 24th July. Sam’s identity and any of the ‘granular’ facts of this case have been obscured by the court, Sam having found this whole process, unsurprisingly, ‘excruciating’.

The Children Act 1989 section 100 puts a number of restrictions on the ability of a local authority to invoke the inherent jurisdiction or ‘wardship’ jurisdiction. I have written more generally about the nature and extent of the court’s powers in wardship here. This is a very ancient jurisdiction and allows the High Court to make orders to protect children from significant harm, even if there is no statutory provision to do so.

The local authority cannot use the inherent/wardship jurisdiction to have a child put in its care under its supervision or otherwise accommodated; nor to give it power to determine any question arising around parental responsibility for a child. The court must give permission for such an application to be made.

The run up to the final hearing

At the hearing on 24th July, the judge ordered that Sam was not to undergo any gender reassignment surgery without the permission of the court and was not to leave, or be removed from, the jurisdiction for the purpose of undergoing any surgery until further order.

An attempt by Sam and the family to get the proceedings dismissed in October 2022 failed By that time the court had received a substantial body of medical records tracking the various consultations and other interventions that the family had sought in the preceding months and years. The local authority moved its focus from the potential for ‘serious harm to [Sam’s] physical and emotional welfare and wellbeing’ to the question of whether full and valid consent to the planned surgery had been given by Sam and/or his parents. The court wanted further investigation.

The final hearing – application to withdraw

The case was listed for final hearing before the President of the Family Division. 5 days before the hearing, the local authority was putting its case on (i) legality of the operation in Country X and (ii) the validity of consent. However, on the morning of the first day of the final hearing, after the President’s clerk had contacted the parties and asked them to consider a number of issues around the validity of the application, the local authority applied to withdraw its application on the basis that it could not discharge the burden of proving its case. Sam and her parents were very relieved and there was no opposition from the Children’s Guardian. Those representing the family members then made application for costs against the local authority.

So what went wrong?

To trigger use of the inherent/wardship jurisdiction the local authority must show that there are reasonable grounds to believe that the child will otherwise suffer significant harm. Its initial statement did not go into great detail, simply saying it was worried about Sam’s emotional and physical welfare, the NHS had not been engaged and there were no proposals for Sam’s after care. However, Sam’s father produced a letter from an expert in Country X who asserted that such surgery was not unlawful in this country and was ‘tolerated’ for those under 18 who were undergoing gender ‘transition’ or ‘confirmation’.

The court considered at an early stage if the local authority should make an application for a care order but the local authority said it did not intend to:

The risk of significant harm that we were concerned about has currently been substantially reduced by our involvement, namely through the existing court order to prevent [Sam] having the operation. Currently the parents are engaging with us and have agreed to a Child in Need process which is positive. It is considered that applying for any further orders at this current time is unnecessary and to do [so] could be oppressive. The local authority does not feel that it is in [Sam’s] best interests at this time and could cause more distress for [Sam] and his family.’

The President found this position ‘legally incoherent’ – as explained above, the inherent jurisdiction cannot be invoked by a local authority if it could achieve its aims by either a care or a supervision order. Whether it wants to or not is irrelevant and to proceed in this way was to ‘distort’ the existing legal structure which ought to be well known to all family lawyers.

The President further noted that the local authority position focused on whether or not the surgery was permitted in Country X and whether proper consent had been given. There was very little reference to any ‘harm’ that would be suffered by Sam, but in an application of this nature the court would expect discussion of possible harm to be of prime importance. Nor was there much reference to Sam’s welfare and the need for the court to make this its paramount concern.

With regard to permission to withdraw proceedings, the court noted that the local authority required permission under Family Procedure Rules 2010, r 29.4(2)21 and the most recent authority is GC v A County Council and Others [2020] EWCA Civ 848, [2020] 2 FLR 1151 in which the court described the approach to be taken. The local authority maintained that it had been right to bring the application and that much detailed evidence had emerged only very recently that allowed it to reconsider its position on legality and consent.

The other parties did not accept this, saying that the evidence had been well known to the local authority for some time. The President noted:

The making of this application and its prosecution over a period of in excess of 6 months has caused harm to Sam and to each of his parents. The impact on him has been ‘excruciating’ and has, in particular, detrimentally affected his schooling. The father’s description of the effect that the local authority’s intervention has had on Sam is one of devastation. The parents have described the court process as very frightening. The mother has been particularly focussed on the possibility that she might be sent to prison if court orders are disobeyed. Both parents are now on medication to help them cope with the consequences of the litigation. The impact of these proceedings on this small family is likely to last into the long-term.

The key issue was whether the local authority had acted unreasonably. The court considered the judgment of Lady Black in Re T [2021] UKSC 35 which focusses on CA 1989, s 100 at paragraphs 118 and 119. The President made costs orders, concluding that the local authority had acted unreasonably in focusing on the legality of the operation and issues around consent where ‘there is no evidence to establish a likelihood of significant harm or that to undertake the operation as planned is contrary to Sam’s welfare…’

Comment – no evidence of significant harm?

As the application before the court was for permission for the local authority to withdraw its application, that was the only substantive issue before the court (apart from also the issue of costs). Therefore the court made some comment on matters of general importance but accepted they were no more than ‘observations’. These points may need to be taken up and fully argued in future contested litigation.

What is of particular interest are the President’s comments about the issue of ‘significant harm’ to Sam and how there was ‘no evidence’ to support a finding that she was at risk of suffering this.

The decision taken by Sam and his parents in favour of surgery was a complex one involving consideration of a range of sophisticated factors. In the circumstances of this case I would have needed a good deal of persuasion before holding that the plan for Sam to go abroad for chest surgery was likely to cause him significant harm, or that to do so was not in his best interests. Further, as is now accepted by the local authority, in a case of two parents who are conspicuously well intentioned, law abiding, loving and child focussed, and in a case where Sam is plainly an intelligent and thoughtful individual who is so well settled in his life as a young man, the prospect of the court concluding that there was some defect in their approach to consent was remote.

Of course, I have not been able to read any of the evidence presented in this case. I do not know the precise nature of the ‘range’ of ‘sophisticated factors’ that were considered. But what is inescapable is that this case involved a child – aged 15 at the date of the proposed surgery – who had to travel abroad for a procedure which it is unlawful to carry out in the UK.

One might suppose that the issue of ‘significant harm’ is encapsulated in the unlawfulness of carrying out such irreversible surgery on a minor in the UK. But the President of the Family Division did not agree.

And in all the genuine and reasonable concern about ‘access’ to ‘gender affirming care’ we now see a very stark two tier system opening up. If your parents are wealthy enough, then they can fly you to a country that does consider it lawful to remove the healthy breasts of a child in order to ‘affirm’ that child’s gender. But a double mastectomy does not make a female a male. There is simply insufficient evidence for the President – or indeed anyone – to conclude that a child will remain ‘well settled’ in their life as the opposite sex, when there is no medical or surgical route that can establish a change of sex.

I suspect a case will be coming and soon where these fundamental issues will need to be grappled with. If children can routinely be transported out of the UK for surgery that is unlawful here, how soon will it be before pressure is applied on the NHS to carry such surgeries?

Procedures on Bruises in Pre-Mobile children

Notes from presentation ‘Procedures on Bruises in Pre-Mobile Children – why we need improved standards for policy making’ by Andy Bilson, Emeritus Professor of Social Work, University of Central Lancashire. 

AB requests that all local authorities review their policies and don’t make automatic section 47 referrals. Looking at bruising to a 4 week old baby. 2, 2cm bruises. What can have caused them? 

In this case, parent could offer no explanation. But these bruises were caused by baby suckling on his arm when hungry. Full child protection review, then baby was witnessed suckling his arm. This is not uncommon. 

Automatic investigation of any bruise under section 47, AB says is ‘not technically legal’. 

AB is going to

  • review the evidence base on accidental bruising,
  • review the procedures for pre-mobile children and
  • consider the impact of procedures. 

Impact on parent whose children was removed. Assumption that one bruise was good enough evidence to suggest child at risk of significant harm. ‘All I did was cry. I didn’t sleep’. 

Evidence base in RCPCH review – Pierce 2016. Under 6 months, 1.3% had a bruise (18/1395) – children seen at hospital. only one occasion of observation. Problems with research. Rates of bruising massively different between the 3 hospitals. 

Kemp 2015 – in Wales. Recruited people to report on weekly basis 1-12 weeks if their child had a bruise. Nurses visited to ensure accuracy.5.3% (7/133) had bruise. didn’t find any NA bruises. 

This was as high as 10.9% if baby rolling, 1.3% if not rolling. Longitudinal data. Over 7-8 weeks, 27% of babies had a non accidental bruise. Therefore 1 in 4 babies had a bruise over a period. 

Sugar 1999 – large study ‘children who don’t cruise, rarely bruise’. This has been disseminated widely. Pre-cruisers 2.2% (11/511). 0.6% ‘no upright ambulation’. Excluded abuse. African American children 3 times less likely to be bruised than white children. 

Carpenter 1999 – less than 6 months 4% 4/101. looked at a small number of children but over many occasions. Relies on parents reporting from local community. 

Challenge myths – accidental bruising in babies is NOT rare. Children can crawl from 4 months. ratio of accidental bruises to those leading to child protection plans is at least 1900 to 1. NO studies show bruising is ‘sentinel injury’. 

if ‘sentinel injury’ would expect Welsh study to show a higher number of children going on to be serious harmed. We orient to see bruises in a particular way. Expectation that parents will notice bruises. 

Causes in Welsh study – lying on dummy, children hit themselves in face with something. Toy dropped by sibling. 

Review of procedures – concern is that the wrong kind of policies and procedures will make parents more wary about seeking help. 

Since Dec 2010 AB has examined 147 Safeguarding Children Partnerships policies – 35 didn’t have ANY definition of ‘pre-mobile’. 12 treated rolling children as mobile, 25 did not! 74 included all children under 6 months. Big difference in Kemp study between rolling and not rolling. 

impact of getting this wrong in both directions is a problem – must avoid over and under reaction. 

Tendency to exaggerate – 20 LA procedures say any bruise is ‘highly predictive’ of child abuse. Almost all say that accidental bruises are ‘very rare’ – this is misunderstanding of statistics. 2% is not ‘rare’. 

Many procedures say ‘a small percentage of bruising in children not independently mobile will have innocent explanation or medical cause’ – they are trying not to miss anything but AB doesn’t think this is the right thing to do. 

18 LA ignore research and claim that infants do NOT bruise themselves by lying on dummy or banging themselves with rattles etc. and say that a self inflicted explanation should be rejected. 

Moving straight to section 47 investigation is therefore unlawful, as no reasonable cause. 

Almost all procedures require referral to CSC and a paediatrician. 27 LA required strategy meeting in all cases. That isn’t following national guidelines. 8 LA require immediate section 47 for bruises on any pre-mobile children. 

Bedford Borough – following 3 Serious Case Reviews, automatic section 47 for any child under 6 months who has any kind of physical injury. e.g. bruise, thermal injury, clinical or radiological evidence of fracture. 

Only challenge to section 47 is by judicial review and only one reported case – Judge commented on how significant a process this is 

Can a local authority restrict a child’s use of a mobile phone?

I was recently asked to consider a case involving a 16 year old child in local authority care, following fears of child sexual exploitation. The local authority wanted to apply to the court for permission to put ‘spyware’ on the child’s mobile phone, in order to monitor any conversations the child was having with those who posed a risk of harm. The local authority made an application for permission under the inherent jurisdiction to deprive the child of liberty. The court raised a question mark about the appropriateness of this application – was it really a deprivation of liberty? 

The questions raised here have broader applicability to on going tension between ‘paternalism’ (protect the child from his foolish decisions ) or ‘autonomy’ (allow the child the freedom to make decisions). I find it interesting that there is such intense scrutiny of a child’s access to a mobile phone but rather less of a child’s assertion that they have ‘changed sex’ and want access to cross sex hormones. Children aged 16 and over pose particular problems in this debate, but it is one we must keep on having. 

The local authority wanted permission to restrict a 16 year old child’s access to the internet via a mobile phone or other device and in particular asked the court to give it permission to remove the phone and monitor the child’s access to the internet by installing ‘spyware’ that would log texts and messages. This was done with aim of protecting the child from further sexual exploitation and it was argued this was proportionate and necessary. The local authority suggested that these restrictions be in place for a relatively short period of time, and they could then be reviewed. 

I identified the following questions to the court

  • Is removal or monitoring of a child’s mobile phone a deprivation of liberty?
  • If it is, is it lawful? i.e. a proportionate and necessary response in the best interests of the child or does the child have capacity to consent and does consent?
  • If this isn’t a deprivation of liberty, is it rather a a breach of article 8 ECHR (right to privacy)
  • If so, is that breach lawful? 

If the proposed restrictions are neither a deprivation of liberty nor breach of article 8 ECHR, then the local authority does not require the authorisation of the court to exercise parental responsibility for the child. However, given the child’s age and the nature of the restrictions sought, it was sensible to put this matter before the court. 

Use of mobile phones by teenagers in local authority care

A survey from Ofcom in 2014 showed that in the UK, 88% of sixteen-to-twenty-four-year-olds owned a smartphone. It seems unlikely that this percentage has fallen in intervening years. The use of mobile phones with internet access is now commonplace and most teenagers will have and use one. Although there are obvious risks inherent in the use of mobile devices that can connect to the internet, such as making children more vulnerable to sexual exploitation, they can be a very useful tool to allow a child to maintain contact with friends and family. 

The Institute for Research and Innovation in Social Services noted

The use of mobile devices and the internet are a normal part of everyday life for children and young people, including those in care.

A balanced view of use of devices and the internet by children and young people in care is to appreciate both opportunities and risks associated with use.

There are a number of factors known to increase the vulnerability of children and young people online. However, in considering vulnerability online, this should be done holistically, taking account of a child or young person’s life in general at a given time, and with awareness of both protective and risk factors.

There is a need for practitioners to move towards a more expansive and child-centred approach with a focus on relationships. This should encompass an appreciation of stepfamily and biological family, and the maintenance of relationships with a wider variety of individuals that reflect the world of the child or young person in care.

As the child is subject to a care order, the local authority ‘shares’ PR with the parents and may override the parents’ wishes if it is ‘necessary’ to safeguard or promote the child’s welfare.  The parents in this case did not object to the proposals but the child was refusing to discuss the matter with social workers. However, parents cannot consent to their child’s deprivation of liberty. A child can, if they have capacity, but also that consent may be withdrawn.

For a child under 16 it is submitted that the removal of a mobile device, restriction on its use or monitoring of conversations on it, are likely to be well within the ‘zone of parental control’ and do not require the local authority to seek the court’s permission. The UK Council for Child Internet Safety (UKCCIS) is clear that parental controls on internet usage is accepted and necessary – such as requiring phones to be turned off at school or surrendered during the night. 

Some local authorities have set out advice for foster carers around removal/restriction of mobile phones which suggests that certainly for younger children, the local authority as corporate parent does not need to seek the court’s permission to exercise control over a child in care’s mobile phone use. For example, see the guidance from East Riding which considers the removal of a mobile phone as a decision of ‘last resort’ 

…  taken when other measures have failed. This decision should itself be reviewed regularly and the phone returned as soon as possible. Any decision to remove the mobile phone for a long period (more than a few days) should be endorsed by the Safeguarding/LAC/Pathway Team Manager, with confirmation for the reasons in writing to the young person and a copy to the carer.

Not only is removal of a mobile phone considered a serious matter, the older a child gets, the less likely it will be that this is a reasonable exercise of parental responsibility. The House of Lords in Gillick approved the following dictum of Lord Denning MR

… the legal right of a parent to the custody of a child … is a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice.

Once children reach 16, they are held by various statutes as able to make their own decisions across a range of issues. These are set out in the judgment of Lady Hale at para 26 of D (A Child) (Rev2) [2019] UKSC 42 (26 September 2019). For example Section 8(1) of the Family Law Reform Act 1969 provides that the consent of a child of 16 to any surgical, medical or dental treatment “shall be as effective as it would be if he were of full age”.

Therefore, it is important to consider what is the lawful basis for depriving or restricting a 16-year old’s access to a mobile phone or the internet. If this is outside the ‘zone of parental control’ then it is submitted that it is desirable for the local authority to seek authorisation from the court, rather than run a risk of being found to have unlawfully breached either Article 5 or Article 8 of the ECHR. 

Article 5 ECHR provides that everyone has a right to liberty and security. Distinguishing between a ‘deprivation’ of liberty and a mere restriction is one of ‘degree or intensity’ and not one of nature or substance. The question whether a person’s liberty is restricted is determined by comparing the extent of that person’s actual freedom with someone of similar age and situation whose freedom is not limited. All children should be subject to restraint upon their freedom to do as they wish, but these restraints necessarily decrease as the children grow. 

Many cases involving a deprivation of liberty involve restriction on physical movement, such as refusing to allow a person to leave premises without supervision. Such cases are governed by the three limbed test set out in Storck v Germany (Application No 61603/00) (2005) 43 EHRR 96, para 71, and 74 emphasising physical confinement. 

However, deprivation of liberty is not restricted solely to limits set on physical movement. Lord Kerr in Cheshire West described ‘liberty’ as “the state or condition of being free from external constraint” 

The Mental Capacity Act (2005) Deprivation of Liberty Code of Practice states that denying social contacts constitutes restraint and therefore is a significant factor as to whether the care and treatment amounts to a deprivation of liberty. The importance of social contact for a child is reflected in article 37 of the UNCRC “…. every child deprived of liberty… shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances.”

In the case of HC (A Minor Deprivation of Liberty) [2018] EWHC 2961 (Fam) the court considered a variety of issues beyond mere physical confinement which had the cumulative effect of depriving a child of his liberty. For example, at para 40 the judge commented on the issues of ‘supervision, support and control’. 

Linked to the question of freedom of movement is the question of supervision.  A typical 13-year-old will certainly be supervised or controlled in certain formal or dangerous settings.  For example, at school, much of the time is supervised to a greater (e.g., in the classroom) or lesser (e.g., during break-time) extent, and a risky sport or activity will generally be conducted under close adult supervision.
However, a typical 13-year-old will also enjoy significant periods of time without any active supervision whatever.  In particular, it is intrinsic to the lives of teenagers that they are able to spend ever-increasing periods of time speaking to and interacting with their friends and peers, and without this being subjected to adult scrutiny.  Equally, it is very much a part of a teenager’s life that they are able to spend time alone, without the presence of an adult or any other person, whenever they like (and their routine allows).

The Judge considered further the consequences of restricted access to social media and the internet. 

Most 13-year-olds have access to social media and the internet.  For many, this represents a very significant element of their burgeoning independence, sense of self and social life.  Of course, for most, the use of social media is important because of and to the extent of that young person having both an immediate network of friends and possibly a secondary network of online acquaintances or ‘followers’ using any particular medium or platform.
To a greater or lesser degree, most 13-year-olds will be subjected at least to parental attempts to monitor and to restrict their use of social media and the internet.  Close and constant monitoring of all use would, in my view, be unusual

Conclusions 

This child was 16 years old and therefore it was highly unlikely a court would agree that it was within the ‘zone of parental authority’ to deny her access to her mobile phone for more than a short period of time or to monitor her use of it by way of ‘spyware’. (If a parent is paying for the mobile phone, it is probably lawful to refuse to keep paying for it!) and thus the proposed restrictions may amount to a deprivation of liberty, for which the court’s authorisation must be sought. It not a deprivation of liberty, this could be an unlawful breach of Article 8, but if its neither then the local authority will be reassured that its actions are within the lawful boundaries of its exercise of parental responsibility. 

UPDATE 23 November 2022

When this matter came before the court, the Judge did not agree that restrictions on use of mobile phone, or adding ‘spyware’ was a deprivation of liberty (which required the court’s authorisation) but it was a breach of Article 8. However, this breach was lawful as it was necessary and proportionate to protect the health and morals of the child. The Judge did not think the local authority required authorisation from the court as this situation was within their parental responsibility.

I think there is probably room for further argument about all of this, certainly on the deprivation of liberty point but for the time being, local authorities should consider carefully such restrictions, make sure that the reasons for them are articulated and impose restrictions for the shortest time necessary. This will protect against any future assertions of an unlawful breach and possible action under the Human Rights Act 1998.

Further reading

More general discussion of depriving children of their liberty and secure accommodation https://childprotectionresource.online/depriving-children-of-their-liberty/

NSPCC Guidance Keeping children safe on line

Manchester City Council v P (Refusal of Restrictions on Mobile Phone) (Rev1) [2023] EWHC 133 (Fam) – court clear that restriction on use of mobile phone is not an issue of deprivation of liberty, but of the exercise of PR

Further reading

Mobile phone extraction Re P, H-L (Children) (Mobile Phone Extraction) – Find Case Law – The National Archives

An open letter to Hannah Hirst re the ‘right’ of a child to medical transition

Children under 16 are very different to children over 16, both in legal terms and cognitive capacity. What happens when arguments are made for ‘children’s rights’ that does not make this explicitly clear?

Dear Ms Hirst

I attended your presentation at the webinar on November 11th ‘An Uncharitable Alliance? Mermaids v Charity Commission and the LGB Alliance’ where you spoke about children’s rights in the context of medical transition and your concerns about how the activities of the LGB Alliance and others might limit those ‘rights’. I note that prior to joining the University of Sheffield you taught Medical Law, Children’s Rights and Public Law at the University of Liverpool as a Graduate Teaching Fellow, so you clearly have knowledge and expertise in this area. 

This increases my concern over some of your assertions made at your presentation, which I set out below. 

As I think this is a matter of significant public interest, I am posting this on my substack and on the Child Protection Resource website. I would be very happy to publish a guest post from you in reply to all or any of this. 

I set out some of my specific concerns below, as I tweeted my thoughts during your presentation. While I would be grateful for any further information you can give about these specific concerns (most notably, the treatment offered, the ages, sex and outcomes for the ‘children’ who presented for ‘gender affirming’ treatment in the 1930s) my over-arching concern is that you apply a ‘rights based’ narrative of child welfare on ‘children’ as a whole, without any distinction between those who do or do not have capacity.

You point out the dangers of treating children as a ‘homogenous group’ – which I agree is often antithetic to the paramountcy principle of the Children Act 1989 which requires an intense focus on the welfare of the individual child who is the subject of legal action. However, you fall into exactly that trap, by failing to make explicit any distinction between children over and under 16 years of age. This is a particularly important distinction because a 16th birthday imports a statutory presumption of consent in many areas. These are set out in the judgment of Lady Hale at para 26 of D (A Child) (Rev2) [2019] UKSC 42 (26 September 2019). For example Section 8(1) of the Family Law Reform Act 1969 provides that the consent of a child of 16 to any surgical, medical or dental treatment “shall be as effective as it would be if he were of full age”

Referring simply to ‘children’ as you did throughout your presentation therefore in my view presents a significant risk to those younger children who in my view are highly unlikely to be able to offer consent to even social transition, let alone medical or surgical transition. They must not become ‘lumped in’ with children of 16. Applying a ‘rights based’ analysis to the welfare of children under 16, is in my view not merely inapt but can be actively harmful to the welfare of these children, when the adult making decisions on their behalf is working on prior ideological assumptions. 

The law clearly recognises and applies the importance of the child’s maturation in any decision making process. The House of Lords in Gillick approved the following dictum of Lord Denning MR

… the legal right of a parent to the custody of a child … is a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice.

If a person cannot understand the nature or consequences of a particular ‘right’ then the decision to enforce that person’s access to it is inevitably made by another. Despite the commendable efforts made by the Mental Capacity Act 2005 to underscore the importance of the ‘best interests’ analysis for those lacking capacity, it remains an inevitable truth that those who lack capacity will have decisions made about them and for them. It is essential that the adults who do this, approach the ‘best interests’ test with an open mind and free from prior assumption. 

For children under 16 what you are in fact advocating for is that an adult’s agenda must prevail where those children – I argue the overwhelming majority – are not Gillick competent. It was clear what this agenda is from your presentation and those of your colleagues that I heard. ‘Transition’ is presented as a ‘right’ of a child, attempts to argue for caution in the light of the lack of any compelling evidence for its efficacy, are dismissed as ‘transphobia’ or attempting to ‘erase’ trans people. 

I was not aware of any attempt in your presentation to engage with the Cass Review or how this has translated into the NHS England draft specifications regarding treatment for gender dysphoria. You made a brief mention of the Review and then spoke about how transition was not merely a medical issue but a social and emotional one also. I am sure you are right about that. But it does not mean that clinicians ought to be encouraged to provide treatment for a child which is irreversible, significant and has no evidence base. To do this is not merely wholly at odds with the welfare of the child, but requires clinicians to abandon the ethical foundations of their practice. 

This blurring or simply ignoring the crucial differences between children’s capacity to consent as they age and mature is sadly a common feature of discussion in this area from those who advocate medical transition as a moral and social good. I note for example the claim from Mermaids that if a child says they are trans, at ANY age, they are trans. The recognition that children ‘age into’ capacity is not some capricious, arbitrary or ‘transphobic’ whim – it is supported by decades of research into child development and noting how children’s ability to understand, retain and weigh up information is compromised by the development of their brain. The solution to this cannot be – as you suggest – to simply offer them ‘more information’ and was explicitly rejected by the Divisional Court in Bell v Tavistock.

This is a matter of particular concern for me as I note a ‘industry’ growing up of those who have not merely staked their professional reputations on the ‘trans child’ but also their income streams.

I would welcome any comment you feel able to give about any of the points I raise. 

Comments via live tweeting of the presentation 

Says there is evidence of children seeking gender affirming care from the 1930s ??? <I would like to see this>. Thinks true numbers of children seeking care now could be much higher as difficulties accessing care.

Recognises concerns about GIDS – inadequate rating and Cass Review. No acknowledgment of ‘gender diverse’ GD children’s rights. Under 18 not included in GRA. Gaps in EA and UNHRC.

accuses courts of not engaging with GD children’s rights and AGAIN refers to ‘rhetoric’. Access to medical transition has become a ‘power dynamic’ re access, compares to abortion and contraception (???)

Says Mermaids action has impact on child’s right to identity. Children are not one homogenous group and don’t have a identity separate from being a child. We don’t describe them as ‘agender’ or ‘nonbinary’

This might be linked to adult ‘discomfort’ about children having an ‘identity’ (OR we reject any assertion that a child can have an ‘agender’ identity as it is made up?)

Says the medical treatment of children has ‘moral and social’ benefits. (and isn’t this the problem? Clinical decisions and evidence overshadowed by adult preoccupations about what is morally good)

Says implications for child’s rights to information. They have rights to ‘all kinds’ of information (that’s certainly an interesting way of putting it).

Says ‘puberty is not reversible’ so treatment needed to prevent adults from surgical intervention. Children will pay hormones from unregulated websites (focus then should be on criminalising those providers, not making them an excuse to prescribe cross sex hormones).

‘we don’t have long term data because its so difficult to get children to engage’ WELL EXACTLY. they are children. They don’t have the capacity to engage in discussion or thought about this.

Now citing Sally Hines who says there is a lack of information for GD children (I think this can only mean a ‘lack of information promoting gender identity treatment). how can it be made accessible for children. (how indeed)

Child’s right to be heard in all matters affecting them (yes but their wishes and feelings can rarely be determinative, particularly when under 16). We need to engage with them.

LGBA have not involved GD children in their activities. Has due weight been attached to their views? (NO! because they are CHILDREN) Heavy reliance on Micheal Biggs but they should listen to Sally Hines.

Is this part of wider problem in hearing GD children who were also excluded by Gov in conversion therapy debate. An adult agenda put on children. No child witnesses in Bell (this is not true. statements from children. Which horrified the court)

Thinks LGBA will end up erasing minority groups, saying they ‘don’t exist’ and ‘shouldn’t be heard’ (this is NOT what anyone is saying. We are asking to listen to evidence). ‘Rolling back Gilick competence’ – (what is this? 16 years old have statutory competence.)

What impact does this have on GD adults and their experiences?

NHS public consultation on treatment of gender dysphoric children

The consultation ends on December 4th. I broadly welcome these proposals as a long over due return to holistic treatment of the child; rather than blanket ‘affirmation’ of a child’s expressed wish to ‘transition’. Whether you agree or not, please have your say. It is important that the consultation has a wide range of responses.

On 20th October 2022, NHS England opened a consultation to seek views on a proposed interim service specification for services for children and young people with gender dysphoria. Once agreed, this interim service specification will be operational only until a new service specification is formed in 2023/24 that will be used by a new configuration of regional providers.   The consultation closes on December 4th 2022 and NHS England recognises the importance of involving the public

…to check whether proposals are right and supported, whether the public understand their impact, and to identify any alternatives before decisions are made. 

This consultation follows the the Cass Review’s interim report, which was commissioned to investigate concerns over the significant surge in in the last few years in the number of children referred for medical treatment for ‘gender dysphoria’ – (the number of referrals is currently at 8.7 per 100,000 population per year in 2021/22 compared to 4 per 100,000 in 2020/21 and 4.5 per 100,000 in 2019/20) alongside the scanty evidence base to support claims about the efficacy of such interventions. The ‘single gender clinic model’ of the Tavistock GIDs had also proved an operational failure, with long waiting lists.

There is much to be very pleased about in terms of protecting children from significant medical interventions that currently lack any compelling evidence base. The key points set out below represent a very welcome and timely return to psychotherapy as the first and usually only treatment for gender dysphoric children; thus England joins Finland and Sweden in explicit rejection of the WPATH guidelines 

The consultation explicitly recognises that ‘gender incongruence’ may be a transient phase, particularly for prepubertal children, and that there will be a range of pathways to support these children and a range of outcomes.

The consultation examines 

  • How care is currently provided.
  • How the interim service specification could change care and the way that services are delivered, and the reasons for these changes.
  • How the proposed changes will be implemented.

The Good – Key Points 

  • Biological sex must be recorded and tracked
  • The importance of a DSM-5 diagnosis of ‘gender dysphoria’ as a gateway to treatment – which is characterized by significant distress and/or functional impairments related to “gender incongruence”. This is in contrast to the reliance by WPATH SOC8 on the ICD-11 diagnosis of “gender incongruence,” which is not necessarily associated with distress and relies primarily on the individual’s own subjective desires for certain treatments.
  • Thus the ‘gender affirming approach’ which originated in the USA has been abandoned and the focus returned to psychoeducation and psychotherapy, rather than an assumption that such children should automatically receive speciality ‘transgender health care’. 
  • Treatment pathway will thus be devised by examining the “clarity, persistence and consistency of gender incongruence, the presence and impact of other clinical needs, and family and social context.”
  • Decisions about a child’s eligibility for medical treatment will be made by a centralised service and puberty blockers will be prescribed only in ‘research protocol settings’ . Cross sex hormones are not mentioned, but it is assumed that a similar approach will be taken here. Those who attempt to access medical intervention outside the NHS protocol will not be supported by the NHS – which may initiate child safeguarding referrals. 
  • All children and young people being considered for hormone treatment will be prospectively enrolled into a research study which will track them into adulthood and provide a secure evidence base about the effects of hormonal interventions
  • ‘Social transition’ is recognised as not a neutral act – it may have significant effects on psychological functioning and is to be discouraged. It should only be pursued in order to alleviate clinically significant distress or impairment in social functioning and only after an ‘explicit informed consent process’. 
  • Emphasis on a multidisciplinary team that goes beyond “gender dysphoria specialists,” to include experts in other relevant areas such as paediatrics, autism etc to enable holistic support for gender dysphoric children. 

The Bad – captured language and magical thinking 

Some have raised serious concerns about some of the language used in the consultation documents. As Isla Mac commented (see further reading below), service specifications are provided in ‘captured language’ based on ‘magical thinking’ which is ‘meaningless nonsense’ and is likely to impede the necessary interventions of the multidisciplinary teams. 

I do not share the same degree of concern raised by Mac and could find only one reference to ‘sex assigned at birth’ against another reference to ‘birth registered sex’. 

What does trouble me however is that the term ‘gender identity’ is embedded in the consulation at numerous points – I have not noted any attempt to define what this means and to what extent it differs from simple reliance on sex-based stereotypes. For example in the ‘background section’ it says 

A quick look at the term used to describe a discrepancy between birth-assigned sex and gender identity is ‘gender incongruence’.

Conclusions

However, I balance my concern over use of the term ‘gender identity’ or ‘sex assigned at birth’ against the very welcome rejection of the WPATH guidelines. We now have a long over due return to an approach that sees the whole child in the context of their family and their environment, rather than simply affirming a ‘trans child’ to be hurried through to medical transition. 

I will therefore be responding to the consultation to say I broadly agree with it. Whether you also agree or you don’t, it is important that the consultation hears from as many people as possible. Please have your say. 

Further reading 

The Cass Review’s interim report

Society for Evidence Based Gender Medicine wrote about the proposals on October 24th 

Isla Mac raised her concerns about the language in the report, noting that magical thinking would not assist children facing mental health challenges. 

Care Proceedings involving parents with learning difficulties – a very short guide

It seems that I have been saying the same thing now for over 20 years. Parents with learning difficulties or disabilities have a compromised ability to understand and retain new information. This may be mitigated to some extent by help and support, but parents will not ‘get better’ and, depending on the degree of disability, may require help and support for the rest of their lives.

This poses particular challenges for parenting, which requires us not merely to be able to undertake efficiently and consistently a huge array of practical tasks around feeding, hygiene, clothing etc but also demands that we are able to respond -sometimes instantly – to an ever changing array of potential threats, on top of demonstrating emotional atunement and availability. ‘Good enough’ parenting is demanding for anyone. For those with learning difficulties who do not have access to a reliable support network, it is often impossible.

I have not been able to discern much of a shift in how these cases are managed. I continue to be involved in cases where the most basic and obvious of lessons that by now should be second nature to professionals about their interventions, were ignored.

So all that happens is that the care proceedings turn into a particularly cruel piece of theatre, where we pay lip service to the notions of fair proceedings but we all know what the eventual outcome is going to be. Often a considerable amount of money is simply wasted on supervising the parents without any apparent agreement about or understanding of what work would be done to help them increase their parenting capacity and who was going to provide it.

I worry that the proliferation of ‘Equality, Diversity and Inclusion’ officers over the past decade has had precisely zero impact on inclusion for disabled people. I suspect this is because that to include us often costs a lot of money and investment in physical infrastructure. Our inclusion is not performative, it is not secured by a rainbow lanyard or concern about pronouns.

So I thought it might help to set out here, as concisely as I can, what every professional needs to have in mind when working with parents who have learning needs.

  • read the Guidance on working with parents with a learning disability. Internalise the five key components
    • accessible information and communication
    • clear and co-ordinated referral and assessment processes and eligibility criteria
    • support designed to meet the needs of parents and children based on assessment of their needs and strengths
    • long-term support, if necessary
    • access to independent advocacy

Further reading

Parents with Learning Disabilities/Difficulties

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

Research from the Nuffield Family Justice Observatory June 12 2024 – Babies in care proceedings, what do we know about parents with learning disabilities or difficulties? The Executive Summary states

Executive summary

This mixed method study, completed by the Institute of Public Care at Oxford Brookes University in September 2023, explored three important questions about parents with learning disabilities and learning difficulties in relation to care proceedings involving their babies.

  • What proportion of care proceedings cases regarding babies (children under 12 months old) involve parents with learning disabilities or learning difficulties?
  • What are the broader characteristics and circumstances of these parents?
  • What are their experiences from the point of referral to children’s social care services through to the conclusion of care proceedings?

The study findings indicated the likely high prevalence of learning disabilities or difficulties among parents involved in care proceedings regarding babies.  It underscores the importance of implementing both the Working Together with Parents Network (WTPN) 2021 Update of the 2016 Good Practice Guidance on Working with Parents with a Learning Disability (WTPN 2021) and the Best Practice Guidelines for When the State Intervenes at Birth (Mason et al. 2023) across public services in England.

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

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

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

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

The court had to deal with the following preliminary issues

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

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

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

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

Discussion 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Parental alienation and the limits of the courts’ jurisdiction.

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

Background

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

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

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

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

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

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

The Appeal

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

Analysis

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

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

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

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

The Court of Appeal stated

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

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

Comment

An article by Hannah Summers gives some more background detail

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

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

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

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

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

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

Further reading

Some useful discussion in Re C (‘Parental Alienation’; Instruction of Expert) [2023] EWHC 345 (Fam)  about the instruction of unregulated experts, the court endorsing this position:

Much like an allegation of domestic abuse; the decision about whether or not a parent has alienated a child is a question of fact for the Court to resolve and not a diagnosis that can or should be offered by a psychologist. For these purposes, the ACP-UK wishes to emphasise that “parental alienation” is not a syndrome capable of being diagnosed, but a process of manipulation of children perpetrated by one parent against the other through, what are termed as, “alienating behaviours”. It is, fundamentally, a question of fact. 

The Care Review

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

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

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

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

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

In 2018 the Family Rights Group published the Care Crisis Review

In February 2020 the Westminster Legal Policy forum keynote seminar

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

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

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

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

The 2022 Review

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

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

The Review describes its remit as

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

Recommendations are made in ten areas

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

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

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

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

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

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

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

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

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

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

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

Why am I cynical?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Further reading

Commentary from Article 39 – which sounds a note of caution

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

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

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

Statement from the Children’s Society

Statement from Pause

Patrick Butler in the Guardian

Book review: Sexy but Psycho

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

Sarah Phillimore

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

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

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

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

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

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