The Speech of Sir Andrew McFarlane President of the Family Division
FLBA National Conference: Manchester 16th October 2021
This is a post by Sarah Phillimore.
It is of course an ancient Chinese curse ‘may you live in interesting times’ and thus an intriguing title for this address, which you can read in full here. I propose to consider some selected highlights of what our President sees for the future of the Family Justice System.
First the President sets out what he wants to achieve over the remaining few years of his term. The following items will always be on his ‘to do list’.
Delivering the implementation of the long-running Digital Reform Programme for Civil, Family and Tribunals
Ensure everyone abides by the recommendations of the Public Law Working Groups.
Move the Family Court out of its silo and work effectively with other jurisdictions.
Protect and enhance the well being of everyone involved in the delivery of family justice.
Two topics however will demand additional time, focus and resources
resolution of private law disputes between parents about caring for their children post separation – this was covered in a previous Key Note address ‘Supporting Families in Conflict: There is a better way’
Transparency – the processes by which the Family Court may be made more open so that the wider public may gain a greater understanding of the work done here. I have undergone a sea change in my own approach to transparency – from actively campaigning for more openness, to now grave concerns about many journalists and parents will seek to use information made publicly available. The President will shortly publish the conclusions of the ‘‘Transparency Review’ that has been undertaken during the past year. Unfortunately this delay in publication meant the President felt it would be premature to consider it now.
Therefore the President turned to consider other matters.
The Future of Remote Hearings.
No national guidance will be issued but each local court centre will be trusted to exercise their discretion on a case by case basis and within broad parameters. The President made some comment about these parameters. It is clear that we will not return to the working practices of February 2020. The courts have now become used to remote working and it should be the formal of choice in appropriate hearings. The central theme is that parties and their lawyers should normally be physically present when an important decision is being taken. A clear negative about remote hearings is the absence of that time ‘at the door of the court’ to focus on issues and possibly settlement. But its clear that remote hearings – ‘for the right case’ – are here to stay.
The system is currently running ‘hot’ and at a level above its normal capacity. The backlog of work remains high and is increasing. The President is clear that this level of working is not sustainable in the long run. Judges also need downtime and sympathy for late filing of position statements etc is going to be in short supply. He is concerned that orders are now taking days to draft after hearings and containing an over abundance of recitals – a new and ‘unwelcome’ development. Hopefully a Practice Direction will be issued early next year.
The recommendations contained in the main report of the Public Law Working Group under the chairmanship of Mr Justice Keehan were launched in April 2021 with the firm expectation that they should be taken up by every local authority in England and Wales by now. The aim is to ensure that cases only come to court when they need to do so and when they are ready to do so in terms of assessments and all other necessary evidence. The big question of whether there is a case for the abolition, or replacement, of supervision orders has been referred to the Law Commission. The sub-group’s deliberations are focussed upon making supervision orders more robust and effective. A final report on this topic, which is expected by April 2022, will include draft Best Practice Guidance. Another sub-group on Adoption has started work with a final report expected later in 2022.
Family Public Law digital programme
The FPL digital programme is now fully operational in 10 of the 43 care centres. Between 10 and 12 further centres will become fully operational next week and it is envisaged that all other centres will join them before the end of the year. Taking up and implementing a substantial new software programme has not been without difficulties, which have been made no easier by doing so during the pandemic when all involved are working beyond their ordinary capacity.
Looking at the Reform programme more generally, five reformed digital services have now been fully delivered: – Divorce – Financial Remedy Consent – Financial Remedy Contested – Probate – Family Public Law. In addition some 60% of all private law applications are now made online. Over ½ million digital applications have now been made using these services and the level of performance has been transferred: 9 – Divorce now takes 20 weeks from start to finish – Financial remedy consents are dealt with in 3 weeks – C100 applications are going to gatekeeping teams within 2 days of receipt – The FPL provides fully digital files for the judiciary.
The President concluded with words of praise
May I conclude by saying what I have now said on very many occasions. The record of achievement of the Family Court from the very first day of the first Lockdown has been profoundly impressive. Every single individual, be they lawyers, court staff, social workers or judges and magistrates, did their utmost to keep the system going and available for those who turn to us for protection or the resolution of intractable disputes. What has been achieved makes me proud to be part of the Family justice system and one of your number.
It certainly looks as if great strides have been made to embrace new technology and move away from a paper based service which hopefully will not only increase efficiency and but reduce costs. I am certainly pleased that remote hearings are here to stay when it comes to the shorter more administrative hearings. The joys of leaving the house at 5.30am to attend a 20 minutes directions hearing in Plymouth certainly diminished over the years – if those days are gone, I am very glad.
But of most interest to me is what the President wasn’t able to speak about – the Transparency Review and what it will mean for not only how we work in the Family Courts, but how others will be able to discuss how we work. I wish I could say I was filled with delighted anticipation for the forthcoming Review and how it will usher in a new golden dawn of shared information and understanding. Sadly, events of the last few years – most notably the woefully imbalanced ‘Dispatches’ report that could apparently find not a single father to interview – have made me much more pessimistic.
But as ever, I am always happy to be proved wrong. It is clear to me that trust and confidence in the system will not come from simply improved ease of access and IT improvements, but rather that people can be helped to understand the nature of the work that is done and most importantly the inevitable limitations of any system of law to mend broken relationships and emotional dysfunction.
On Thursday 4th November 2021 at 7 p.m. we will be presenting by Microsoft Teams a play about a young baby who gets shaken and badly injured whilst in the care of her parents. The family portrayed in the play are involved in care proceedings. The play shows the social circumstances, so frequently encountered in criminal and Family proceedings, which lead to this sort of injury.
The play is graphic, and some may find it distressing. It lasts for about 40 minutes. We show it as an acted play-reading. It has been written be HHJ Wildblood QC. There is no charge for attendance.
After the play, there will be a short talk by Dr Imelda Bennett, Consultant Paediatrician explaining the nature of injuries that are often encountered when a baby is shaken. That will be followed by a short talk by DCI Kristina Windsor about the criminal procedures that may arise and the charging options that may need to be considered. Finally, HHJ Wildblood QC will speak about Family Court procedures and the need for communication between the Family and Criminal proceedings. There will be a chance to send in questions using the Team’s ‘chat’ function.
We estimate that the event will last a total of about 1 ½ – 2 hours. The intention is to improve our understanding of how these distressing injuries can occur and the consequences that may arise for everyone involved. Those attending are asked to turn off their microphones and cameras when joining the Teams link.
The Teams link is here. If you have difficulty joining on the night, please email HHJ Wildblood QC on his email address: firstname.lastname@example.org
If you are attending, please could you send a brief email to Stephen on the above email address so that we have some idea of numbers.
The Court of Appeal decision in the Bell v Tavistock case.
This is a post by Sarah Phillimore. I will be discussing these issues at a webinar organised by EBSWA on September 30th. Please join us.
Over recent years, considerable debate has arisen over the consequences of medical intervention which aims to allow ‘gender dysphoric’ children to ‘transition’ from the body into which they were born, to better reflect their perceived ‘gender identity’. There are serious concerns that this kind of intervention is experimental, with no clear evidence base and carries significant risks for the child.
The debate culminated in 2020 with the challenge of Keira Bell by judicial review, against the lawfulness of the decision by the Tavistock and Portman NHS Foundation Trust (‘the Tavistock’) to agree that she could offer valid consent to medical transition, aged 16. The High Court determined that such cases should be brought to court for a ‘best interests’ decision, emphasising how unlikely it was for children under 16 to be ‘Gillick competent’ and therefore able to offer informed consent to medical transition, by way of puberty blockers and cross sex hormones.
The Tavistock appealed in June 2021 and the judgment was published today, September 17th 2021.
In brief, the Court of Appeal allowed the appeal, considering that the High Court had made findings on controversial and disputed facts, which was not the purpose of a judicial review and which is was not entitled to make. The court noted the real danger in situations involving ethical questions coming before the court on disputed evidence which is not capable of resolution in this arena. The court may attempt “to enunciate propositions of principle without full appreciation of the implications that these will have in practice, throwing into confusion those who feel obliged to attempt to apply those principles in practice.” (para 77). The decision about treatment must be made by the clinicians, child and parents. However, the Court of Appeal sounded a clear note of warning at paras 92 and 93 – clinicians must be aware of their ethical duties when determining a child’s informed consent and failure to do so will carry regulatory or even criminal consequences.
So where do we go from here?
The necessary debate about the implications of medical transition for children – particularly as the huge recent surge in referrals of teenage girls strongly suggests some kind of social contagion rather than pressing medical need – has been gravely hampered by a toxic and polarised atmosphere, whereby legitimate concerns about the welfare of children have been actively rejected as ‘bigotry’ or ‘transphobia’. However, in the run up to the first hearing in Bell and immediately afterwards, consideration of the welfare issues for children began to get more serious exposure.
Current NHS advice with regard to puberty blockers and cross sex hormones states that little is known about the long-term side effects of either treatment. Although some claim that puberty blockers are a physically reversible treatment, the psychological effects are not known. There are concerns about potential impact on the brain or bones. For boys, ‘pausing’ puberty may mean they do not develop enough penile or scrotal tissue to undergo later construction of a neo-vagina. Cross sex hormones may cause irreversible changes to the body – such as breast growth or deepening of the voice and temporary or permanent sterility.
The National Institute for Health and Care Excellence (NICE) (see ‘further reading’ below) has concluded that any potential benefits of gender-affirming hormones must be weighed against the largely unknown long-term safety profile of these treatments in children and adolescents with gender dysphoria. Other jurisdictions, such as Sweden, Finland and Australia are also raising concerns about the quality of the available evidence.
The High Court decision
The High Court held that in order for a child to be competent to give informed consent to puberty blockers, the child would have to understand, retain and weigh the following information:
the immediate consequences of the treatment in physical and psychological terms;
the fact that the vast majority of patients taking puberty blocking drugs proceed to taking cross-sex hormones and are, therefore, on a pathway to much greater medical interventions;
the relationship between taking cross-sex hormones and subsequent surgery, with the implications of such surgery;
the fact that cross-sex hormones may well lead to a loss of fertility;
the impact of cross-sex hormones on sexual function;
the impact that taking this step on this treatment pathway may have on future and life-long relationships;
the unknown physical consequences of taking puberty blocking drugs; and
the fact that the evidence base for this treatment is as yet highly uncertain.
The Court considered that it was ‘highly unlikely’ that a child of 13 years or younger could give informed consent (the youngest patient referred to the Tavistock for puberty blockers was aged 10 years) and ‘doubtful’ whether a child aged 14 or 15 could. Clinicians were advised to consider seeking court authorisation before treating any child, but that position was clarified in AB v CD & Ors  EWHC 741 (Fam). If child, their parents and the clinician all agreed that treatment was the best course of action then court authorisation was not required.
The judgment begins by making it clear that the only issue before the court was the question of whether or not the sanction of the court was needed before puberty blockers or cross sex hormones were prescribed – not whether the treatment itself was lawful. The claimants argued that those under 18 were not capable in law of giving valid consent.
The court notes at para 5 an ‘odd feature’ of the claim – it was not actually the Tavistock who prescribed puberty blockers. It referred children on to either UCH or Leeds which then independently made its own clinical assessment and obtaining valid consent from the child. Neither hospital trust was joined as a party to these proceedings but intervened as it was their prescribing of puberty blockers that was ‘under attack’. In reality therefore, the claim was a challenge to the NHS policy of providing treatment for gender dysphoric children – the gender identity service at the Tavistock (GIDS) is provided as part of the NHS Standard Contract and commissioned by the NHS Commissioning Board in accordance with a service specification.
The High Court did not find any illegality in the policy or practice of the Tavistock, UCH or Leeds. Nor did it agree that the information given to children was ‘inadequate’ – but did express concern about the ability of children to understand and weigh it [para 150]. The claim for JR was not however dismissed; the High Court went on to declare precisely what was required by ‘informed consent’.
The Tavistock appealed on 8 grounds (para 12)
Grounds 1 and 2 – the court misapplied the law in Gillick.
Ground 3 – the court’s conclusions were inconsistent with the 1969 Family Law Reform Act.
Grounds 4 and 5 challenge the conclusion that prescription of puberty blockers for gender dysphoria is “experimental” and that their effects are “lifelong” and “life-changing”.
Grounds 6 and 7 – challenge the court’s reliance on expert evidence adduced by the claimants and relying on it to resolve clinical differences of opinion.
Ground 8 – that that the approach of the court discriminates against children with gender dysphoria which cannot be justified
From para 15, the Court of Appeal examined the factual background in more detail. From para 24 it sets out the history of the use of puberty blockers.
How did the High Court deal with the law?
The Court of Appeal examined this from para 39. The High Court had concluded that apart from ‘life saving’ treatment, there could be no more profound intervention in a child’s life and therefore it was appropriate for the court to sanction this type of treatment. But the Court of Appeal responded to remind itself that it should be wary of “becoming too involved in highly complex moral and ethical issues on a generalised, rather than case specific basis.” Neither the service specifications nor the standard operating procedures of the Tavistock were unlawful. The House of Lords in Gillick had been very clear that it was for the clinician to decide if a child under 16 could give informed consent to medical treatment. It was unwise for the courts to attempt to put judicial limits on this – the rights of the patients were better protected by the professional standards of the treating clinicians.
How did the High Court deal with the evidence?
The Court of Appeal were unhappy with how the High Court dealt with disputed evidence.
Even from within the evidence filed on behalf of Tavistock, there is an apparent disconnect between the international experience that 1.6% of children who started puberty blockers did not go on to cross-sex hormones and the figures which arose from the random sample, namely that of 49 referred to the Trusts only 27 were approved for or accessed cross-sex hormones. This is one example of the difficulty in drawing conclusions from statistics which are not fully explained or explored in an evidential context where they were peripheral to the legal dispute before the Divisional Court and where any apparent differences were not capable of being tested forensically.
The Court of Appeal agreed with the stated approach of the High Court that a judicial review was not the correct arena for making findings of fact (para 31) or attempting to choose between disputed expert evidence but considered that despite these statements of intent, the High Court had made some factual determinations. See from para 33:
It was unusual for a child to be refused puberty blockers because s/he could not consent; instead ‘more information’ was offered.
Once a child started puberty blockers they were on a clear pathway to cross sex hormones
This treatment was rightly described as ‘experimental’
This treatment may support the persistence of gender dysphoria, which would otherwise have resolved
The Court of Appeal were unhappy that the status of the claimant’s evidence had not been resolved by the High Court- it had been adduced without permission and some of it was ‘argumentative and controversial’. A judicial review is simply not the arena to resolved disputed expert evidence and normally the defendant’s evidence would be taken at face value.
There was further discussion of this from para 61. The High Court found the treatment was ‘experimental’ on the basis that there was ‘real uncertainty over the short and long-term consequences of the treatment with very limited evidence as to its efficacy’ – but the Court of Appeal found it would have been better to avoid those kind of ‘controversial’ findings. The same criticisms were levelled at the finding that the overwhelming majority of children would move from puberty blockers to cross sex hormones. The declaration “turns expressions of judicial opinion into a statement of law itself. In addition, it states facts as law which are both controversial and capable of change” (para 80).
As the Court of Appeal made clear at para 64
The point, however, is that these judicial review proceedings did not provide a forum for the resolution of contested issues of fact, causation and clinical judgement….As will appear from what we say in the next section of this judgment, we have concluded that the declaration implied factual findings that the Divisional Court was not equipped to make.
Was the High Court right to make declarations about the nature of the treatment?
Short answer: No. The Court of Appeal examined this issue from para 66, noting that it was the heart of the appeal: the Tavistock arguing that the court “intruded into the realm of decisions agreed upon by doctors, patients and their parents, where the court had not previously gone.” Nor could the Court of Appeal find any example of declaratory relief being granted in a judicial review where the challenge with regard to the law had failed.
At para 70 the Court of Appeal criticised the High Court’s declarations as attempting an exhaustive list of factual circumstances that must be evaluated in seeking consent from a child. But some of the factors identified beg questions to which different clinicians would give different answers. At para 75 the Court of Appeal said:
The evidence of Tavistock and the Trusts was that the treatment was safe, internationally endorsed, reversible and subject to a rigorous assessment process at each stage. It was supported by the service specification, the WPATH guidelines, the Endrocrine Society Clinical Guidelines and explained in the witness statements of Dr Carmichael and Dr Alvi. As we have seen, and as these proceedings have illuminated, there are strongly held contrary views. The declaration would require the clinicians to suspend or at least to temper their clinical judgement and defer to what amounts to the clinical judgement of the court on which key features should inform an assessment of Gillick competence, influenced by the views of other clinicians who take a different view and in circumstances where Mr Hyam accepts that the service specification, which sets out criteria for referring a child for puberty blockers, is not unlawful.
Both Lords Scarman and Fraser had in Gillick made detailed observations about what they would expect to see from doctors assessing informed consent. But to have turned these into declarations of law would have been inappropriate (para 81).
Was the High Court right to have given guidance that these matters should come before the court?
Short answer: no. The Court of Appeal noted at para 86 that requiring the decision about this treatment to be sanctioned by the court “placed patients, parents and clinicians in a very difficult position”. The guidance would in practice have the effect of denying treatment as many wouldn’t have the resources to make an application and there would be inevitable delay through court involvement. In addition, where child, parents and clinicians agree treatment is in the best interests of the child, it would be inconsistent with the conclusion of the Supreme Court in An NHS Trust (discussed at ) to bring the matter to court.
Having made these decisions, the Court of Appeal did not need to consider the issues around discrimination in the final ground of appeal.
I do not doubt that gender dysphoria is a ‘real thing’ and causes great suffering. However, I do very strongly doubt that it is as common as current referal rates or social media activity suggests. The majority of children expressing ‘gender variance’ will not wish to ‘change sex’ if left to go through puberty unmedicated.
The Court of Appeal was clear at para 92 that the pre-Bell landscape has shifted and sounds a warning note for clinicians and their insurers.
We should not finish this judgment without recognising the difficulties and complexities associated with the question of whether children are competent to consent to the prescription of puberty blockers and cross-sex hormones. They raise all the deep issues identified in Gillick, and more. Clinicians will inevitably take great care before recommending treatment to a child and be astute to ensure that the consent obtained from both child and parents is properly informed by the advantages and disadvantages of the proposed course of treatment and in the light of evolving research and understanding of the implications and long-term consequences of such treatment. Great care is needed to ensure that the necessary consents are properly obtained. As Gillick itself made clear, clinicians will be alive to the possibility of regulatory or civil action where, in individual cases, the issue can be tested.
And at para 93:
But it is for the clinicians to exercise their judgement knowing how important it is that consent is properly obtained according to the particular individual circumstances, as envisaged by Gillick itself, and by reference to developing understanding in this difficult and controversial area. The clinicians are subject to professional regulation and oversight.
Keira Bell’s judicial review has failed but she has performed a great service for not only the welfare of children but also the integrity of the medical and scientific community. The High Court blew the lid off the lack of proper evidence in this field alongside the bizarre cementing of an ‘affirmation path’ which confined children on a route to really serious medical intervention, for the rest of their lives. I hope that the discussion generated by both the High Court and the Court of Appeal will finally bring an end to this dangerous climate of fear, where necessary discussion is shut down as ‘transphobia’.
While I am disappointed that there is little reference by the Court of Appeal to the ancient powers of protection that the court exercises over children I can understand the limitations of the judicial review process and the difficulty of trying to determine disputed and controversial evidence within it. I also hope that the medical profession will undertake their duties to properly assess the informed consent of their child patients, without bowing to pressure from political lobby groups.
The signs are hopeful now of more general willingness and openness to discuss these very important issues. The Cass Review was commissioned in 2020 to carry out an independent review into gender identity services for young people. Its terms of reference focus on the assessment, diagnosis and care of children with gender incongruence and will be wide ranging in scope.
I will await the outcome of the Cass Review with great interest. I hope it is going to show that all patients, but particularly children, need services that are insulated from political ideology. ‘Talking therapies’ must assume a greater importance than simply a model of affirmation. This will no doubt place an even greater strain on the existing specialist facilities for ‘gender diverse’ children but the long term impacts on children are too serious to ignore and we must make investment in our children’s mental health a priority.
First – Do No Harm.
The variety and disparity of the online comment immediately generated, underscores for me the need for Parliament to step in and set clear parameters for the age limits for this treatment.
An organisation of parents, professionals and academics based in the UK who are concerned about the current trend to diagnose children as transgender, including the unprecedented number of teenage girls suddenly self-identifying as ‘trans’ (Rapid Onset Gender Dysphoria or ROGD). See discussion of the teenage brain https://www.transgendertrend.com/teenage-brain/
Am I a ‘troll’ or a ‘leading professional’? The answer seems to depend on whether or not I am agreeing with someone’s particular narrative at a particular time, rather than on the quality of my arguments and the state of my evidence.
I have been distracted from the child protection system of late by ever increasing terror at the state of the ‘debate’ over issues of sex and gender and our rights to speak about them. But I haven’t strayed too far from this arena. And there are many similarities; here I find exactly the same kind of damaging rejection of facts in pursuit of what appears to be a religious fever that corrupts meaningful discussion. There is the exact same pushing of a precooked and preconceived narrative to achieve a campaigning end – truth, facts and the welfare of children be damned.
So what’s happened now to provoke an irritated blog post? There has been a clear build up over several years now of a campaign to persuade law and policy makers that the family court system is a tool of misogynistic oppression, which is designed to ‘hand over’ children to violent men and punish women who dare allege that they have been abused. The campaigners scored a considerable victory with the Ministry of Justice ‘Harm Report’ in June 2020. I have set out my concerns about this report and its conclusions here; in brief it was argued on the basis of self selected ‘lived experience’ that the ‘pro contact culture’ of the family courts meant that children were not protected from the invariably male domestic abusers.
However, the Court of Appeal put the brakes on with their decision Re H-N and Others (children) (domestic abuse: finding of fact hearings)  EWCA Civ 448 which I wrote about here. Many campaigners appeared to be expecting a wholesale demolition of the family court system and recognition that judges simply couldn’t be trusted to even identify domestic abuse, let alone be aware of case law and practice directions about how to deal with it. But the Court of Appeal concluded:
We are therefore of the view that PD12J is and remains, fit for the purpose for which it was designed namely to provide the courts with a structure enabling the court first to recognise all forms of domestic abuse and thereafter on how to approach such allegations when made in private law proceedings. As was also recognised by The Harm Panel, we are satisfied that the structure properly reflects modern concepts and understanding of domestic abuse
But the campaigners weren’t daunted. They came back fighting with a Dispatches documentary ‘Torn Apart’ which aired on July 20th 2021. It’s basic message seemed to be that ‘parental alienation’ wasn’t a real thing, but rather a strategy of vile abusing men to ensure that children were ‘torn apart’ from their loving mothers, at the behest of the criminally incompetent and dysfunctional family court system.
‘Parental alienation’ is a phrase to describe what happens when a child is effectively brainwashed by one parent to refuse contact with the other. It’s a real thing, that sadly men and women do to their children, it causes immense emotional harm and there is a wealth of case law about it. I have written about it here and here if you want to read more. In the minority of really intractable cases the court may order the children to be removed from the alienating parent, either into foster care or to live with the other parent. This is done because the court’s primary duty is to secure the welfare of the child, not to ‘punish’ or ‘reward’ either parent.
If you haven’t seen the documentary, watch and make up your own mind. I will just share a few of the comments I received via email after it aired, from lawyers, psychologists and parent campaigners.
My main complaint is the imbalanced reporting. Orders for transfer of living arrangements are not common and usually made only at the end of years of litigation, expert and guardian involvement and probably multiple ‘second chances’ for mum (using the example in the documentary). It was not made clear WHY the Judge had felt a transfer of living arrangements to be in these children’s best interests.
For me it was the failure to acknowledge that PA is actually a real thing. It is not a gendered issue. Mother’s were represented but not as targeted parents. Father’s were not represented at all. Grown up children who were alienated as youngsters were not represented. A balance of expertise was not represented. It erased the experience of a whole cohort of children, parents and extended families, for whom PA is real, and that was utterly devastating
It’s all very well to use actors in re-enactments, but it was far from clear as to what was real and what was not in this film. And to use such highly emotive language, tone and even screams with no indication of how much of each is just an artist’s impression rather than an accurate representation of what actually happened. Even mum crying about her babies is unlikely to have been filmed at the time, so the whole thing – and it is the emotional impact that is the issue under consideration – could be entirely misleading. This is a far cry from a voiceover to maintain anonymity. Were the kids even real? Surely if they were, this would be breaking the disclosure law? Surely too they could have mocked up dad’s side a little too? What about giving some indication as to why the judge made the decision in the first place – not exactly a common decision… This is all way outside any public broadcasting, balanced reporting and truth exposé characteristics previously associated with C4. Fake news/nudge territory here. Not even creative!
There was also extensive coverage in newspapers and on social media. I will just highlight one of the articles, written by one of the contributors to Dispatches, a Dr Charlotte Proudman. What makes Proudman’s contribution all the more remarkable is that she is a family law barrister. Yet she felt able to say this, writing in the Guardian on 21st July 2021 under the headline Our family courts are allowing perpetrators to use the bogus idea of ‘parental alienation’ to gain access to their victims.
I have watched, horrified, as parental alienation has become the go-to litigation tactic, often used by domestic abusers to discredit allegations made against them by their ex-partner. Although parental alienation can be raised by either parent, overwhelmingly I see it being deployed as a counter-allegation by fathers when mothers try to prove they or their children have been subjected to abuse.
That may be Proudman’s experience. It certainly isn’t mine, nor that of the many others who have expressed their views via email. I would like to have discussed this with Proudman, but she has blocked my Twitter account, even when she relies on me as a ‘leading professional’ later in the article.
I suspect I am only a ‘leading professional’ because she wishes to cite a letter I wrote to the President of the Family Division about the need to change the rules to prevent unregulated experts from giving evidence in children cases. This is particularly important in cases of parental alienation as often the choices for children are very bleak; leave them to suffer emotional harm or try to remove them and risk a different kind of harm. So its important that we can trust the experts who offer the court their expert opinion. I do not trust any expert who choses not to be subject to external regulation.
I unfairly criticised Proudman for saying the President had refused to consider it; I had hoped that it was simply on the back burner until COVID was over. But she was right, the Family Procedure Rules Committee refused to take action on 8th February 2021 and no one had the courtesy to even let me know. I think this is a mistake and an example of where the family justice system doesn’t help itself. But it does not justify or explain Proudman’s comment that then followed, that this refusal left ‘victims – primarily mothers – and children at risk.’ Unregulated experts are a risk to us all. This isn’t a men versus women situation.
Nor do I accept that the concept of parental alienation is ‘bogus’ or ‘junk science’ as Proudman asserts – I have seen it too often over 20 years.
The article ends in unhelpful hyperbole
The dangerous label of parental alienation is now the single biggest threat to the credibility of victims of domestic abuse, and to the voices of children. It gives validation, power and control to perpetrators. Any court that countenances unevidenced allegations of parental alienation is potentially sanctioning abuse. Sadly, it may take a tragedy before anyone will actually listen.
I suggest that the single biggest threat to the credibility of victims of domestic abuse are the enthusiastic attempts by campaigners like Proudman to remove certain behaviours from scrutiny. Mothers are just as capable of hurting their children as fathers and a failure to recognise this or even actively deny it, promotes giving moral authority to child abusers – something I have argued that the ‘DV Sector’ seem particularly keen to do.
No court should countenance ‘unevidenced’ allegations of parental abuse. Every case where I have dealt with allegations of parental alienation these were anxiously scrutinised over far too many months, leadings to the bitterly ironic situation where the alienation became further entrenched and the harm to the child even greater. Proudman is a barrister. She ought to understand above all the importance and the centrality of evidence in family cases. She ought not to be an enthusiastic proponent of a false narrative that paints the family court system as a frankly insane circus.
There is a great deal wrong with the family court system. It is in crisis. Of that there is no doubt, and I have considered it here, here, and here.
But what it does understand is evidence. Ours is a system which puts ‘proof of facts at its heart’. Children are not ripped from the arms of loving mothers on a whim or to punish them for daring to alleged the father is abusive. The court operates to protect the welfare of the child as its paramount consideration. And often it fails. But this is not because of deliberate misogyny or ignoring evidence. It is for the same dreary, unsexy reasons that many systems fail – because it is the wrong system for the problem at hand. Many family disputes revolve almost entirely around issues which are beyond the court’s reach – the psychological dysfunction of the parents, their emotional pain, their fear, their poverty, their substance abuse, their lack of employment or housing. There are simply not enough judges to make sure that cases are heard quickly enough to prevent nascent alienation hardening into full blown significant emotional harm to a child. And this situation has been made even worse by the backlog caused during lockdown.
So what’s the solution? I don’t know. We really need to rip it up and start again. The system is not serving either parents or children. But it is never, ever any solution to allow single issue campaigners to bend the ear of law and policy makers to promote the banging of their own particular drum. We have to look at the facts, not promote one ideology over another.
So until this is done, I will remain Schrodinger’s barrister – simultaneously both a ‘troll’ and a ‘leading professional’, depending on who is listening. But it is not my views that change, only the extent to which some are prepared to accept challenge to a preconceived narrative. I can only hope for better things.
This case concerned two children aged 16 and 14 whose father was in prison after being convicted in 2012 and sentenced to 26 years for really serious sexual offences against children, including possession of 20,407 images ranging from Level 1 to Level 5 on the COPINE scale (“Combating Paedophile Information Networks in Europe” – a scale used to measure the severity of child sex abuse images). The children hadn’t seen him since his arrest in 2011 – they were initially told he was working abroad. The father protested his innocence but the Judge commented at sentencing that he was ‘devious and manipulative’ and posed a serious risk. The father was subject to a Sexual Offences Protection Order which placed serious limitations on his contact with children, even his own.
The father wanted to have contact with the children. He applied for both direct and indirect contact but by the time the matter came to court, the argument was about indirect contact which the mother and the Children’s Guardian supported. However, the Prison Governor did not, citing public protection and suggested that the prison might not facilitate contact even if was ordered by the Family Court as being in the children’s best interests. Therefore both the Prisoner Governor and the Secretary of State of Justice became intervenors in the case.
In public law proceedings in May 2012 the court made what appeared to be a final order, prohibiting the father from having contact with the children and even directed the mother’s solicitors to write to the prison to say there should be no contact from the father to the children, mother and maternal grandmother. The father requested in 2016 to be allowed contact and an assessment in 2017 recommended indirect contact. The prison then undertook a multi agency risk assessment and refused to permit ANY contact between father and children. The prison were not clear how the indirect contact could be managed and noted that the mother shared the father’s belief in his innocence. The prison tried to clarify the terms of the final order of May 2012 and whether contact between the father and children would be a breach of its terms.
But in March 2021 the prison confirmed they were NOT in agreement as the risks were just too high – the father had not undertaken any work to address his understanding of his offending, the mother did not provide a safeguard and the children were arguably more vulnerable to grooming now as teenagers. The father was described as ‘dangerous and predatory’. The prison went so far as to say that even if contact was ordered, the prison could not facilitate it as contrary to public protection and prison policy. The mother argued that the children understood the severity of the situation and the need to safeguard themselves; they understood about grooming and in any event would fairly soon be able to have contact as adults.
What approach did the court take?
The court recognised that this subject matter was likely to generate strong views. But the task of the court was to decide if indirect contact was in the children’s best interests, considering the welfare factors set out in the Children Act 1989 section 1(3). No one argued that the children and the father did not have a right to a family life so any breach of that would have to be proportionate.
The next question was whether the Family court could compel a prison governor to comply with an order to facilitate contact with a child and a serving prisoner. The answer to this question was ‘no’ – to do so would be inconsistent with the terms of the Children Act and the wider statutory scheme relating to the management of prisons and prisoners. In essence, the Family Court cannot make a contact order against a public body. This position was set out in Re M (Children) (Contact: Enforcement of Foreign Order)  Fam 230. Parliament granted the Secretary of State of Justice control over prisons – see the Prison Act 1952 and the Prison Rules 1999 (as amended by the Prison (Amendment) (No.2) Rules 2000.
The Secretary of State has a discretion to permit a prisoner to communicate with any person outside the prison and to receive communications and also the power under s34(1) of the Prison Rules to restrict such communications if it is necessary, on the grounds of public safety, the protection of health or morals. Such discretion must be exercised proportionally.
Other relevant statutes are the Children Act 2004; section 11 places a duty on prison governors to safeguard and promote the welfare of children. Under s325 of the Criminal Justice Act 2003, the governor has a duty to assess and manage the risk of violent and sexual offenders. Rule 4 of the Prison Rules 1999 also provides for respect to the need for special attention to be paid to maintaining the relationship between the prisoner and his family.
Within this context, the National Offender Management Service Public Protection Manual 2016 stipulates that it is ultimately the prison governor who makes the assessment as to whether contact is safe, and will examine static and dynamic risk factors.
The case law also demonstrated where the boundary between the jurisdiction of the Family Court and the jurisdiction the Secretary of State – for example in CF v Secretary of State for the Home Department and another  EWHC 111 (Fam), Munby J (as he then was) recognised that the court did not have power to determine if a mother was allowed to remain in prison with her child.
None this prevents the Family Court making an order for contact but the implementation of any such order cannot displace the statutory powers of the Secretary of State for Justice. The fact that the Family Court has made an order will be a ‘significant and relevant consideration’ for the Secretary of State, through the prison governor but the final decision as to whether and how the order is implemented will rest with the Secretary of State.
It is possible to challenge a decision to refuse to facilitate contact via judicial review – see Westwater v Secretary of State for Justice  EWHC 2403 (Admin) where the initial risk assessment was held to be inadequate.
The court decided that it was in the children’s best interests to make a contact order – they both expressed the clear view they wanted to see their father. They had demonstrated some understanding of their father’s offences and why he was in prison. They did not have a dogmatic view of his guilt or innocence. Both were aware of the risks of child sexual exploitation. The court found that both children had an emotional need for some contact with their father, both being at the stage in their development when they are able to question their identity and explore who they are. In particular it was important that they be given the change to have such contact now, before reaching the age of 18 when they would not have the support proposed while they remain children.
The court did not however make a final order – not as an attempt to influence the governor, who had helpfully indicated a further review of the position re contact, but to recognise that if the contact order was not implemented then the court might need to further consider the children’s welfare.
In 2020 the Bristol Pro Bono Network finally became a reality, after years of thought and planning from those who knew that the enthusiasm and talent of Bristol lawyers needed better direction so that it could more easily reach those who needed it. I am writing this post as an unashamed plug; I was shocked at a recent meeting to be told that if you search ‘free legal advice in Bristol’ the BPBN doesn’t appear – I have just checked and it isn’t on the first page of google search results. I am hoping that by writing this blog post and linking to the site, I may increase its chances of being found.
And I think it is definitely worth plugging.
The mission of the group is to identify unmet legal need, support the delivery of pro bono advice and share best practice.
We are passionate about access to justice. We encourage lawyers to work with local universities and community groups to deliver free legal advice to individuals who don’t have access to legal advice. Bristol Pro Bono Group works collaboratively to identify not-for-profit organisations working in the public interest who need legal help.
What is pro bono?
The BPBN follows the definition of pro bono used by TrustLaw (found here). In essence – it is legal work done by qualified lawyers, for no fee. ‘Pro Bono’ is taken from the Latin phrase ‘pro bono publico’ – for the good of the public. The Latin phrase is almost certainly a problem in engaging with a wider audience as it isn’t immediately clear what it means, but it is likely we will never shake it now – ‘free legal work’ doesn’t have quite the same ring.
Pro bono work can never be a substitute for a proper system of publicly funded legal services, and some lawyers object to offering pro bono services in case this undermines the commitment of Government to provided proper funding. However, the BPBN believe, as do I, that lawyers have the responsibility to use their professional skills to do their bit for society. The Legal Aid Sentencing and Punishment of Offenders Act 2012 removed legal aid from a large range of civil matters, including disputes between parents about seeing their children. This was apparently in the the expectation that such parents would seek mediation to resolve their differences, but such expectations were dashed. Such private law applications are increasing year on year and leading to a huge rise in the number of litigants in person. I have written year about the types of clients who use the Bristol Family Law Scheme which started in 2015 and is part of the BPBN.
This is how it looked in 2017, from 246 clients.
English as a second language
Likely to be in person
Mental health problems
Learning difficulties or literacy problems
Violence or sexual abuse of adult or child
Leave to remove
Current criminal proceedings
Reference to other agencies
It is a poor reflection on our society that such a client base has no ability to pay lawyers privately and no access to Government funded legal aid. Pro Bono work is a small drop in that ocean of need but I think it is important. Not just for the individual who may be helped but for the lawyer who offers help – something outside the daily grind of billable hours, a chance to connect and strengthen our bonds of community.
Children’s Commissioners were established by Part 1 of the Children Act 2004 following recommendations made by Lord Laming in the Victoria Climbie Inquiry. Victoria died in February 2000 after months of appalling ill treatment by Marie-Therese Kouao and Carl John Manning. This was despite Victoria being known to at least two housing authorities, four social services departments, two child protection teams of the Metropolitan Police Service (MPS), a specialist centre managed by the NSPCC, and had been admitted to two different hospitals because of suspected deliberate harm. The Inquiry found an urgent need for more effective inter-agency co-operation and sharing of information about children.
The Commissioner has statutory obligations to to encourage decision makers to take children’s best interests into account, along with powers to gather data and to enter premises. The Children and Families Act 2014 further strengthened this remit. The Commissioner operates with a team of staff, and works with various advisory and children’s groups, stakeholders and specialists.
All four offices of the UK Children’s Commissioners work closely to promote and safeguard the rights of children and young people in the UK, including submitting joint reports on the status of children’s rights in the UK to the UN Committee on the Rights of the Child.
So one might assume that the recent decision of Bell v Tavistock and the implications for children would be something within the remit of the Children’s Commissioner?
I looked at the websites of the four Commissioners in turn.
Searching the site for ‘Keira Bell’ ‘The Tavistock’ or ‘Puberty blockers’ returned no results. A search for ‘transgender’ produced three. A blog from 2015 commenting that it was difficult for transgender children to feel safe as who they were, approving comment in November 2019 on the publication of the Guidance for Schools, EOTAS Centres and Youth Service on Supporting Transgender Young People by the Education Authority, and then way back in January 2004 Comments By The Commissioner For Children And Young People At The Launch Of The Youthnet Report “Shout” On The Needs Of Young People In Northern Ireland Who Identify As Lesbian, Gay, Bisexual Or Transgender where the then Commission Nigel Williams commented:
… we are simply talking about the freedom to discover who you are, what your identity is and to do that without being bullied, without being verbally abused, without being so tortured by society’s attitude that you contemplate suicide.
So the linking between homosexuality and transgender identities goes back a very long way indeed, thus cementing the idea that a child who identifies as transgender is simply discovering their authentic self.
She speaks up for children and young people so that policymakers and the people who have an impact on their lives take their views and interests into account when making decisions about them.
She does this by first gathering evidence: talking to children and young people, requesting information from public institutions and then carrying out research and compiling information on the wide range of things that affect children’s lives.
She is the ‘eyes and ears’ of children in the system and the country as a whole and is expected to carry out her duties ‘without fear or favour’ of Government, children’s agencies, and the voluntary and private sectors.
This was a surprise. Considering the remit of the various Children’s Commissioners I had expected at least some comment. However, it is clear that at least some of the Children’s Commissioners had been giving this matter some thought after I was contacted by someone who had made a Freedom of Information Request to the Scottish Commissioner.
FOI request to the Scottish Children’s Commissioner
A request was made on 7th January 2021 to the Children and Young People’s Commissioner Scotland for information held on the Keira Bell High Court judgment of 1st December 2020:
1. Correspondence and other relevant material between the Commissioner/staff and other UK Commissioners/staff
2. Internal communications between the Commissioner and staff
3. External communications from the Commissioner’s staff to external organisations.
This was refused and an internal review of that refusal was sought on 30th March 2021 on the basis that:
It is in the public interest to disclose the information that was withheld
The reasons for refusing disclosure were not credible
There has been stalling at every turn and information released only when pressed
This goes against the spirit of transparency and openness
This was also refused on 27th April 2021 relying on the statutory exemptions to disclosure that would cause ‘prejudice to effective conduct of public affairs’. The reasons for refusal are worth examining.
There was an email chain showing that the Children’s Commissoner for Wales had forwarded to the Scottish Commissioner a request for legal advice in relation to the Bell v Tavistock judgment. The Scottish Commissioner commented in its refusal to disclose:
‘The rights of transgender children and young people in the UK is a highly sensitive matter and the Bell v Tavistock judgment is currently under appeal and therefore a live legal issue. The Chldren’s Commissioner for Wales chose to share with us their initial legal advice with an expectation that this would not be disclosed beyond the officer of the Children and Young People’s Commissioner Scotland’
The concern was that disclosure of this advice would ‘substantially inhibit’ collaboration between the various Commissioners and this would be ‘material and substantial’ prejudice.
The Scottish Commissioner did not dispute the public interest in the issues raised by the Bell judgment. But that nature of these issues and the manner in which they are discussed were a strong argument against disclosure.
Regarding the Keira Bell judgment, a safe space is essential due to the extremely and unusually toxic nature of the debate around these issues, which are regarded by individuals on both sides of the debate as impacting on existential matters of personal and group identity.
Such concerns had been raised before, in a response to the Gender Recognition Reform (Scotland) Bill Consulation:
All those participating in the debate should be mindful of the need to keep the discussion focused on the issues and on the law rather than personalising them. Failure to ensure that these conditions exist is, in our view, highly unlikely to result in effective, rights compliant law and poses a serious risk to the rights and interests of many children and young people
I don’t disagree with that at all. But it is concerning to see this used as an argument to REFUSE to share correspondence and advice between the various Commissioners’ offices. Surely there can be no chance that these communications would inflame tensions by using abusive language? Surely they are simply focusing on the law and ensuring it is compliant with children’s rights?
It seems likely that there have been some ‘robust’ views by various members of staff as the letter of refusal goes on to say
‘…public bodies must be mindful of their positive obligation not to inflame matters. It is therefore imperative that any public comment by our office (or Wales) is very carefully drafted to avoid exacerbating this toxic environment for children and young people. This means we must ensure we can discuss, debate and consider issues from several angles before deciding whether to make public comment on them, and what the nature of that comment should be’
Reliance was also placed on claims of confidentiality of communications between a legal adviser and their client, and disclosure of personal information.
So all that we know is this. On 9th December 2020 Sally Holland from the Welsh office forwared to Bruce Adamson in Scotland an email from Rachel Thomas saying ‘not sure when you’re speaking to Bruce about this case’. The next three paragraphs are redacted as exempt from disclosure. The email ends ‘If you’d rather me speak to Bruce about it to save you getting up to speed on it all I’d be happy to so – appreciate he might want a Commissioner discussion of course but the offer is there if it assists’.
On 16th December 2020 emails were then exchanged between members of the Scottish officer to say ‘yes, let’s discuss. I’m clearer on what he’s looking for now I think’. Then a heavily redacted email which ends ‘Can we discuss tomorrow please?’
I have some sympathy with the need to exempt from disclosure material which represents the necessary ‘to and fro’ as people raise, discuss and refine issues of importance. I also understand the importance of maintaining confidentiality around legal advice. But it is very concerning that an organistion with the status of a Children’s Commissoner is clearly concerned that the nature of the discussion within its organisation and with the other offices may risk contributing to the ‘toxic nature’ of the debate. How could this be possible given that all who work there must be alive to the need ‘to keep the discussion focused on the issues and on the law rather than personalising them’?
I suspect there are two problems here. Given the nature and extent of institutional capture in the UK, individual staff members may have gone way beyond a focus on the law and engaged in moral castigation of those ‘hateful bigots’ who would seek to impede a child’s identification of their ‘authentic selves’. OR there is a realistion that simply commenting on the relevant law will be seen and seized upon by many as a ‘hateful’ ‘bigoted’ attack on the rights of an ‘exceptionally vulnerable’ minority.
The person who made the request will now take it to the ICO. I will be interested to know if the reasons for refusal are upheld – I suspect they will be. It is fair enough to note that Bell v Tavistock will be the subject of further hearing before the Court of Appeal at the end of June. The time for detailed and thoughtful comment from the Commissioners will be when they have had time to process and understand the decision.
But the comments made in the refusal letter are worrying as we see that the toxicity of this debate is clearly having a damaging impact on the ability of many to discuss the actual law and its impact on children. The ‘toxicity’ of course I believe comes from one ‘side’ only – the side which did not wish to discuss any of this, the side which cried ‘no debate’ at every opportunity, the side which is happy for children to submit to experimental medical treatment with long term consequences in order to support the validation of adult decisions about their ‘gender identity’.
Victoria Climbie was tied up in a bin bag and left to die in a bath. After her death the doctors examining her could find not one part of her body that was left unmarked. She was murdered by two adults who were supposed to be looking after her and no one did anything to help her until it was far too late. Adults do terrible things to children. Sometimes they tell themselves that what they are doing is right and proper. Children need ALL of us to step up and protect them, and we ought to be confident in the reliance we place on those statutory bodies who are under legal obligation to do so. I hope that very soon after the Court of Appeal judgment in Bell v Tavistock– which ever way it goes – we will see clear commentary and recommendations in a joint report from all four of the Commissioners.
The judgment is interesting, not merely because it sets out the Judge’s condemnation of the local authority in clear and damning terms but also because of what I think it reveals of the wider problems which may have contributed to this widespread and longstanding failure to meet the children’s needs.
I think we have a big problem in our family court system with the notion of ‘the truth’ being established at 51%, there is a now dangerous dearth of available mental health support for children AND the ‘tick box mentality’ combined with drive to meet externally imposed ‘performance indicators’ is corrupting proper analysis of what each individual child needs. None of this is said to attempt to excuse what went wrong in this case. But I do think its worth consideration. If ‘lessons are to be learned’ we all need a firm foundation on which to build our learning. At the moment, I do not think we have it and thus ‘blaming and shaming’ various local authorities in turn for their failings will offer nothing more than a fleeting sense of self righteousness. I think its high time we directed our anger at the systemic failings which allow such individual failures to flourish.
This case turned on a finding of fact which found that the children had not been sexually abused by their wider family as they alleged, but had been exposed to their mother’s poor mental health and sexual activity in the home. The children are now aged 17, 13 and 11. They had a 14 year old sister C, who sadly died in 2019. They were removed from their family in 2012 and moved to live with foster carers where they remain. Care proceedings were heard in 2014 and the Judge made findings of fact that the children’s allegations were not true and that they needed help to understand the reality of their situation and to be supported to have contact with their mother. This never happened.
It seemed that the foster carers were never helped to understand the fact finding judgment or even given a copy of it. They believed what the children were saying about the allegations. The local authority it appears was keen to meet their ‘performance indicators’ to get the children out of foster care and for the foster carers to be made ‘special guardians’. This lead to the author of an assessment, which warned against the foster carers, being pressured to change her recommendations and to support the making of a special guardianship order. The children had no life story work and what therapeutic intervention existed was little and late – and proceeded on the basis that the children had been subject to serious sexual abuse, despite the findings of the court that they had not.
Unsurprisingly therefore, the mother was not able to establish a relationship with her children and felt that she had been sidelined and ignored; demonstrated most tragically by the death of C in hospital in 2019.
The findings against the local authority are stark and set out in Appendix 1 to the judgment, including:
failed to use HHJ Rundell’s fact-finding judgment as a basis for challenging and changing the children’s distorted perceptions of their family.
failed to promote contact between the children and their mother over significant periods of time
failed to manage the foster placement appropriately or meet the emotional needs of the children
So what went so horribly wrong? And why do I think there are wider problems at play than simply the incompetence and mis-management of a case by one local authority?
Establishing the truth at 51%.
First, a brief summary of the fact finding process when allegations of sexual abuse are made. The burden of proof is on the person making the allegation and the standard of proof is ‘the balance of probabilities’ , i.e. is it ‘more likely than not’ that something happened. Findings must be based on evidence; you can draw inferences from the evidence but suspicion and speculation do not count. The court has to look at all the evidence and consider each piece in the context of other pieces. The evidence of parents is very important and the court must form a clear view of their credibility and reliability. It is common for people to tell lies during court proceedings but the court must always remember that there are many reasons why people don’t tell the truth and there should be no automatic assumption that this means the parents are telling lies about everything.
In Re AS v TH 2016 EWHC 532, MacDonald J set out particular guidance when determining issues of sexual abuse.
Where the evidence of a child stands only as hearsay, (i.e. the child’s account is being shared with the court by someone else and the child is not present to give their own account) the court weighing up that evidence has to take into account the fact that it was not subject to cross-examination (Re W (Children)(Abuse: Oral Evidence)  1 FLR 1485).
It is a two stage process – is there evidence of sexual abuse? If so, is there evidence about who did it?
The court must have regard to government guidance from March 2015 which advises that “if a child reports, following a conversation you have initiated or otherwise, that they are being abused and neglected, you should listen to them, take their allegation seriously, and reassure them that you will take action to keep them safe.”
If a child does make allegations, the 2011 statutory guidance ‘Achieving Best Evidence in Criminal Proceedings’ [ABE Guidelines] must be followed. Initial questioning must be brief and detailed accounts not pursued until a more formal interview. This is to prevent evidence becoming corrupted by leading questions or assumptions.
The formal interview must facilitate a ‘free narrative’ from the child and avoid leading/loaded questions.
Failure to meet the ABE Guidelines doesn’t mean a Judge cannot rely on hearsay evidence from a child, but of course it is likely to make it more difficult to prove what actually happened. See Re JB 2021 EWCA Civ 46.
There is clearly a lot here that can go wrong and it is unsurprising that many of those not directly involved with the fact finding process – or even some that were! – may struggle to accept it, particularly when children continue to assert that what they say is true.
In the vast majority of my cases involving serious allegations of sexual abuse, the ABE Guidelines are NOT met, even and most worryingly, by the police officers who are supposedly trained to implement them. It is clear that many social workers and teachers are still ‘trained’ to believe a child and frequently refer to what a child says as ‘disclosure’ (the secret thing that is made known) and proceed from that basis. A combination of the susceptibility of children (see the work of Professor Ceci and others) and their wish to please adults, together with well meaning but often disastrous attempts to elicit information about what happened, often means that by the time we get to court there is a very muddled picture indeed, with various confused and contradictory accounts recorded.
The court does the best it can. But – as many Judges have commented – they can only decide the case that is in front of them. Despite frequent exhortations to remember that care proceedings are ‘quasi inquisitorial’ and that we should not be directing our focus on adversarial attacks, the reality is that our system is adversarial, as opposed to ‘inquisitorial’ where the Judge takes the lead on investigation.
Despite these serious and obvious limitations to the fact finding process, there still appears to be a strange belief in some quarters that the family court is able to – indeed has a moral duty to – find the ‘absolute truth’ for the benefit of the children, who deserve to know what happened to them. I do not doubt that children deserve to know the truth about whatever tragedies and suffering have impacted their earliest lives. But I have significant doubts that a finding of fact process with a standard of proof on the ‘balance of probabilities’ is the vehicle to give them this knowledge. Or, at the very least there ought to be some greater recognition of the limitations of the process. A stark example of when a court seriously over-reached was with regard to Ben Butler – ‘exonerated’ on a balance of probabilities from hurting his daughter, he went on to murder her.
Of course the court has to do something. I agree that the criminal standard of proof when applied to child protection cases is likely to leave some children at risk of not being protected at all. As the argument goes – none of us would require proof beyond a reasonable doubt before acting to keep our own children safe, so why should any other child get less favourable treatment? I don’t doubt the sense of all this at all. But – I do doubt that the obvious limitations of the fact finding process are considered properly, or in some cases at all.
In this case the children clearly believed they had been sexually abused. This coloured the reactions of their foster carers against their mother, it infected the basis on which therapy and intervention was offered. How could it not? I have had many cases where children made allegations of sexual abuse which were fantastical – they simply could not be true or the child would be dead. The court makes a finding they are not true. Therapy is offered the child. We ask the expert how the child can be assisted to ‘re-frame’ their narrative and to re-establish a relationship with the adult exonerated. The expert, sometimes quite angrily replies that this is simply an unethical request and the child’s reality is their reality.
Memories are slippery things. We do not access them as a playback of a recording. Each time a memory is re-visted and re-examined it is re-created. The ‘Satanic Panic’ of the late 80s and early 90s showed how easy it was to convince children (and prosecutors) that every spiralling fantasy of murdered babies elicited under interrogation was actually ‘the truth’ and a ‘real memory’. But I imagine that for children – as these were – exposed to a parent with mental health problems and a household with lax boundaries around sexual activities, that they were frightened much of the time and the narrative they have constructed around abuse makes perfect sense given their experiences and feelings as they grew up.
To help children unpick all this is obviously a task of extreme skill. The bottom line is and remains that we simply do not have enough or sufficiently funded resources for children to allow them to benefit from the timely and expert intervention that they need. Of course, this does not excuse the failure of the local authority to make attempts to source it and to mispresent the views of an expert – as happened here. But it must be considered. If we do not take steps to remedy this then it is difficult to see how ‘lessons can be learned’ or children can reliably access the help they need.
The corrupting impact of ‘key performance indicators’
It seems that the second most serious failing here was the local authority’s drive to change the foster carers to special guardians, in order to show that the children were not ‘languishing’ in long term care and the failure to take proper action over many years.
The dangers of being driven by external ‘performance indicators’ are obvious. For example, there is a real concern that Tony Blair’s drive when Prime Minister, to get children out of long term foster care and into ‘loving’ adoptive homes has lead to a perverse incentive for some local authorities to move more swiftly with regard to new born babies than they might otherwise have done. Establishing ‘targets’ often makes the ‘target’ the focus, not what is happening on the ground. Further, allow a period of ‘drift’ over many years to then influence the speed and direction of decisions, can be disastrous.
The drift over so many years clearly influenced a decision to ‘push’ through with Special Guardian Orders and lead the local authority to ignore all the warning signs that the foster carers were not assisting the children to come to terms with what had happened or meet their emotional needs – particularly for a relationship with their mother, who had failed them but – according to the court findings – not in the ways the children asserted.
In this case the court commented at para 141:
Ms Straughan asserted that, in consequence of the local authority’s looked after children (‘LAC’) reduction policy, she, and other social workers had been placed under pressure to recommend that SGOs were made in favour of foster carers and/or kinship carers. Further, she said she had come under pressure to recommend a SGO be made in respect of these children.
The problems here, the lamentable delay, the failure to properly inform and manage the foster carers, the misrepresentation of expert views and the pressure on social workers to change their recommendations, cannot be simply excused by reliance on pressure of work or the systemic problems in the system highlighted above. The local authority appears committed to recognising why and how it failed and taking steps to put it right. The outcome of the extra-ordinary general meeting will be worth studying.
But I do make a plea for all to remember the water in which we swim. Not all of these failings are down to individual malice, laziness or lack of thought. While there remain tensions between meeting targets and the needs of children and while the support services they need are not readily available, we are going to continue to see cases of sub optimal performance and continued harm done to children even as they are supposedly ‘rescued’ from their birth families.
This is an interesting decision which looks closely at the ambit of section 33 of the Children Act 1989 and how local authorities may exercise PR for children subject to care orders. It concludes that there are only a small category of cases where the LA cannot proceed to ‘over rule’ parents using section 33. Applications to permit a EU national child to remain in the UK now that ‘freedom of movement’ has ended, did not fall within that category of cases that needed the court’s approval.
Judgment was handed down by Mr Justice MacDonald on 31st March 2021
This case involved 3 separate applications made by local authorities under the inherent jurisdiction of the High Court about the operation of the United Kingdom’s European Union Settlement Scheme (hereafter “the EUSS”) regarding children who were subject of care orders. Without such an application, the children’s right to remain in the jurisdiction where they were settled, could be jeopardised. The court delivered one judgment to cover all cases, as the issues and questions raised were the same.
Questions before the court
Where parents of an EU National child subject to a care order either oppose an application for their child for immigration status under the EUSS (or the application for a passport or national identity document that would allow this application to be made) or can’t be found to give their agreement, can the local authority proceed to make the application relying on section 33 (3) of the Children Act OR does it need the court’s permission?
A care order allows the local authority to share parental responsibility for a child with the parents and section 33 allows a local authority to restrict others with parental responsibility from exercising it, when it is necessary for the child’s welfare.
The court found that the local authority could make these applications under section 33 of the Children Act 1989.
If the EU national child requires a passport or other documents about identity to be issued by the EU Member State of the child’s nationality and requires a court order if the parents can’t be found or don’t agree, does this court have the power to make an order and if so what is it?
The court found that the court did have the power to make such an order under the inherent jurisdiction but the local authority should first check with the EUSS what documents would be required as it may be possible to proceed without a passport.
The court was assisted by the various local authorities providing evidence about their procedures for securing immigration status under the EUSS for looked after children who were not subject to care orders. The Secretaries of State for The Home Department and Education also accepted the court’s invitation to intervene to help with the requirements of and operation of the EUSS as it relates to looked after children. Therefore the judgement looks at the position of all looked after children, whether they are subject to a care order or not.
Background to the applications
Between July and November 2020 the Home Office surveyed local authorities to provide an estimate of the number of looked after children and care leavers who were eligible to apply to the EUSS, and found 3,300. Those subject to a care order or placement order numbered 2,080 and so far 1,520 applications had been made. The deadline for the applications is 30th June 2021 so it was clearly very important that all local authorities understood and discharged their duties towards children who are eligible to apply. Without such an application for ‘settled status’ the children’s right to remain in the country would be jeopardised. Guidance was issued by the Home Office in April 2020 highlighting that local authorities must in all circumstances seek the best possible outcomes for the looked after child and should address immigration issues as soon as possible and take legal advice as appropriate.
The father in one case involving two Polish children made his opposition very clear by emailing the court to say
“I refuse to give permission for settlement status and passports I do not want My children bonding with strangers any further I want them to be with their family ideally their Mother even though I am not a part of Her life anymore outside of being the father of My children and I would also love nothing more than to be a part of their lives even if insignificant family is very important to Me a Muslim Our values rely heavily on what parents teach their children about life and I feel like them being with non-Muslims is taking away my right as their parent to teach them right and wrong based on the teachings of our creator and also I refute all evidence that social services and community has provided that has made Me seem unfit as a parent I have tried my best and made a few mistakes but I definitely know that My mistakes don’t warrant Me being stripped of parenthood entirely.”
The local authority therefore applied for permission to invoke the inherent jurisdiction to allow it to apply for a passport for each of the children and then amended its application to include permission to apply for immigration status under the EUSS. The children’s guardian supported both applications. The Care Proceedings Unit at the Polish Embassy reassured the court that granting settled status in the UK would not have any negative impact on the children’s Polish citizenship.
The local authority wanted clarity as to whether it could make these applications under section 33 of the Children Act or whether this fell within the small group of cases where the court’s approval is needed. If the Polish Embassy required a court order, the court is able to and should make an order under the inherent jurisdiction.
THE RELEVANT LAW AND GUIDANCE
End to freedom of movement – The EU Settlement Scheme
Under the terms of the Immigration Act 1971, save for those with a right of abode, Irish citizens and those persons who are exempt from immigration control, every person requires leave to enter or to remain in the United Kingdom. Prior to 31 December 2020, EU, other European Economic Area (EEA) citizens and Swiss citizens did not require leave to enter or remain in the UK by reason of having rights of entry in accordance with the EU Treaties and the Free Movement Directive 2004/38/EU, as given effect in domestic law by the Immigration (European Economic Area) Regulations 2016. After 31stDecember, those regulations were repealed by the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020, bringing to an end freedom of movement between the UK and the EU.
Part 2 of the Withdrawal Agreement between the UK and the EU, reached on 17 October 2019, sets out the provisions of the Treaty concerning citizens’ rights. EU, other EEA citizens and Swiss citizens who were resident in the UK prior to 11pm GMT on 31 December 2021 can continue to exercise their right to reside in accordance with the Free Movement Directive, provided they continue to meet the conditions of that Directive. However, pursuant to Art 18 of the Withdrawal Agreement, the UK requires EU, other EEA citizens and Swiss citizens who wish to continue to take advantage of their rights under the Withdrawal Agreement after 30 June 2021, to apply for a new immigration status in the UK. There is provision for ‘late applications’ where there are “reasonable grounds” for the failure to meet the deadline, which reasonable grounds will include “children whose parent, guardian or local authority fails to apply on their behalf.” But if an application is not made, that person becomes ‘undocumented’ which can have an impact on eligibility for benefits and services, and brings a risk that the person will be removed from the UK.
Therefore the UK set up the EUSS in March 2019 to give people permission to enter or remain in the UK. The application must be made using the prescribed application process and a valid application requires proof of identity and nationality. The Secretaries of State for the Home Department and Education argued that parental consent is not required for an application to be made on behalf of a child, as the rights from which children benefit under the Withdrawal Agreement do not depend on parental agreement. The guidance to local authorities emphasises that children’s wishes and feelings should always be considered and children should be made aware of their entitlement to independent advocacy support.
A key requirement of the application to the EUSS is proof of identity and nationality which is usually provided by a valid passport of national identity card. If the child doesn’t have these documents, then the local authority should endeavour to get one from the child’s country of origin before making the application to the EUSS. However the immigration rules have a discretion to allow alternative evidence of identity and nationality where the applicant is unable to obtain or produce the required documentation due to circumstances beyond their control or to compelling practical or compassionate reasons. Lack of relevant documents was noted to be a serious problem in the Home Office survey of those children eligible to apply. Local authorities also have a dedicated phone line to the Home Office Settlement Resolution Centre which provides support for applicants. The Home Office Policy Equality Statement, published in November 2020, also recognises that age is a protected characteristic under the Equality Act 2010 and the impact of the EUSS on children has been carefully considered, having regard to Article 3 of the UN Convention on the Rights of the Child. Therefore caseworkers will be looking for reasons to grant applications, not refuse and should exercise discretion in favour of applicants to minimise administrative burdens.
Is an application to the EUSS something a LA can do without parental consent?
The court was clear at para 42, there are some decisions so serious that it would not be appropriate to allow the local authority to act in reliance on section 33(3)(b) of the Children Act 1989, and an application to the court needs to be made. Three Court of Appeal decisions provided guidance as to the boundary between those matters that are appropriately dealt with by a local authority pursuant to the power conferred by s.33(3)(b) of the Children Act 1989, and those decisions that are appropriately referred to the court for determination.
In Re C (Children)  EWCA Civ 374, found a local authority could not use section 33 to stop a parent registering a child with a particular name; this issue should come to court.
In Re H (A Child)(Parental Responsibility: Vaccination)  EWCA Civ 664 the Court of Appeal held that routine vaccination under the United Kingdom public health programme, in circumstances where there was no contra-indication in relation to the child in question and the link between the MMR vaccine and autism had been definitively disproved, could not be regarded as decision of such magnitude that it would be wrong for a local authority to use its power under s. 33(3)(b) to override the wishes or views of a parent
in Re Y (Children in Care: Change of Nationality)  EWCA Civ 1038, the Court of Appeal examined if the local authority was allowed under section 33 to take steps to apply for British citizenship for the subject children in the face of parental opposition and where that course may lead to a loss of their existing citizenship. The Court held that in circumstances where changing a child’s citizenship is a momentous step with profound and enduring consequences that requires the most careful consideration, it would not appropriate for the local authority to proceed under s.33(3) of the Children Act 1989 in the face of parental opposition and where that course may lead to a loss of their existing citizenship
The Court noted what King LJ found at para 99 In Re H (A Child)(Parental Responsibility: Vaccination) that section 33 of the Children Act 1989 is not an invitation to local authorities ‘to ride roughshod over the wishes of parents whose children are in care.’ It was suggested that parents could make their own application to invoke the inherent jurisdiction if the local authority wished to vaccinate against their wishes. However, as was noted in In Re Y (Children in Care: Change of Nationality), it is often not a realistic remedy to expect parents to take legal action, particularly if their immigration status is insecure.
The Inherent Jurisdiction
The starting point is section 100 of the Children Act 1989. It cannot be used to put a child in the care of or under the supervision of a local authority and the local authority must get the court’s permission to make an application. The court will only give permission if there isn’t any other way of achieving the desired result and there is ‘reasonable cause to believe that if the court’s inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm. ‘ The courts have noted that section 100 is ‘difficult’ and ‘at first blush’ would be seen to preclude a local authority from applying to use the inherent jurisidiction to by pass section 33 of the CA. However, it is clear that this is the route which is now approved and adopted for ‘difficult cases’ – however applications in those cases involving serious issues around medical treatment, ought to be made by the relevant NHS Trust, rather than the local authority.
The Family Procedure Rules 2010 in PD12D at para 1.1 states with respect to the use of the inherent jurisdiction:
“It is the duty of the court under its inherent jurisdiction to ensure that a child who is the subject of proceedings is protected and properly taken care of. The court may in exercising its inherent jurisdiction make any order or determine any issue in respect of a child unless limited by case law or statute. Such proceedings should not be commenced unless it is clear that the issues concerning the child cannot be resolved under the Children Act 1989.”
The Court decided that applying for passports or EUSS status was something the local authority had the statutory power to do under section 33 of the Children Act and it didn’t need to make an application to the court.
The court found that Parliament intended a local authority which has been granted parental responsibility in respect of a child by operation of law
to be able, following a rigorous procedural and legal process undertaken before a court prior to the granting of such orders and if necessary to safeguard and promote the child’s welfare, to limit the power of a parent to make major decisions regarding a child’s life and instead to take those decisions in place of the parent by exercising its parental responsibility for the child.
There are statutory limitations in s 33(6) and (7) that the local authority cannot cause the child to be brought up in a different religion, change the child’s surname or remove him from the jurisdiction. However, subject to these restrictions and the requirement that exercise of PR must be ‘necessary’ to promote the child’s welfare, the power conferred by s.33(3) on a local authority is not otherwise circumscribed.
A small open category of cases remain where it is appropriate for issues involving exercise of PR to come before the court but it was emphasised that this is only justified where:
where the consequences of the exercise of a particular act of parental responsibility are so profound or enduring and have such an impact on either the child him or herself, and/or on the Art 8 rights of those other parties who share parental responsibility with a local authority, that it would be wrong for a local authority to use its power …’
The court was clear that an application to EUSS or for a passport did not invoke consequences so profound that the court’s approval was needed. The court considered in particular that the application for passport was simply to provide evidence of a child’s identity and nationality, and a grant of immigration status under the EUSS will not prevent the child from returning to their country of origin or, if he or she wishes to, from relinquishing their immigration status in the UK on reaching their majority.
With regard to the child’s Article 8 rights, the court said this:
…whilst it might be possible to identify some factors that may constitute an interference in those rights, for example the fact that settled status will mean the child will remain in the United Kingdom rather than the country of their birth, with the concomitant effect on their understanding of their identity and on relationships with extended family, with respect to children who are the subject of a care order, the question of whether that interference is proportionate will have been determined in the care proceedings as part of the evaluation of the care plan mandated by statute.
Discussion was had about cases where those with PR fail to make the necessary applications to EUSS for a child who is not in local authority care, or a child has been lost and abandoned and no one has PR . The court agreed that this highlighted the need for local authorities to remain alive, when discharging their obligations to looked after children for whom they do not share parental responsibility, care leavers and children in need, to the possibility of cases that may, exceptionally, require the intervention of the court.
The court did have the power to make orders under the inherent jurisdiction but the court was clear this should not be the first port of call and the local authority should first confirm with the Settlement Resolution Centre whether such documents as the child already has available are sufficient for the purposes of the EUSS application. Only if they are not, and no other acceptable documents exist and can be procured, should an application to court for an order under the inherent jurisdiction be contemplated by the local authority.
This is a post by Sarah Phillimore. This is a useful judgment setting out comprehensively and clearly the historical evolution of the family court approach to issues of domestic abuse and offering useful pointers for how such cases should be handled. It recognises that every appeal in such cases represents a failure but does not accept wider criticisms of a systemic refusal or inability of the family court system to tackle allegations of abuse. However, the massive, trumpeting elephant in the room remains the tensions between the need to see relationships more of ‘patterns’ than discrete incidents and the inevitability that such investigation will take time that the family court system just doesn’t have.
On the 30th March 2021 the Court of Appeal handed down its judgment in four conjoined appeals. A number of intervenors were involved, including the Association of Lawyers for Children and Families Need Fathers. The first 77 paragraphs deal with some general guidance on two very important issues.
where domestic abuse is alleged in children cases, should the focus be on patterns of behaviour rather than specific incidents?
What extent should the family courts be taking into account concepts which are applicable in criminal proceedings?
The rest of the judgment looks at the individual appeals. While guidance from the Court of Appeal is always welcome, the court recognises at the outset its limitations. Not only are there various initiatives already in train but there is a clear limit to what any court can say about issues which do not strictly arise from the appeals before it.
Domestic Abuse in the Family Courts
This is sadly a common issue. A ‘guesstimate’ is that of the 55,253 ‘private law’ children applications made in 2019/2020, 40% involved allegations of domestic abuse. It is important that the court consider the impact of the abuse on the parents and child and may restrict or even close down, any continuing relationship between the abusive parent and the child. If one parent does not accept the allegations of the other, the family court as a civil court, may conduct a ‘finding of fact hearing’ to determine what did or didn’t happen. The burden of proof is on the person making the allegations and the standard of proof is the ordinary civil standard ‘on the balance of probabilities’ . If the court does not find that an allegation is true then it is treated as if it didn’t happen.
Cases are heard by the 2,744 lay magistrates and 1,582 salaried judges, along with some part time judges. Making decisions in such cases is clearly a significant responsibility – get it wrong and either an abusive parent is allowed free reign to continue abusing, or a blameless parent may lose their relationship with their child. The cases can be very difficult – the evidence is often not clear and may turn on the word of one parent against the other. The decision about having a finding of fact hearing and what allegations it should deal with is clearly very important and needs to be made at an early stage. Not every case will need such a hearing.
Developing understanding of issues around domestic abuse
The family courts approach to issues of domestic abuse have evolved as society’s attitudes have shifted – although some say its far too little and too slowly. But the attitudes of decades ago, where domestic abuse was seen as either trivial or a private matter, are long gone. There have been various shifts in attitude over the years. The Court of Appeal noted the ‘seminal moment’ to the court’s approach to ‘domestic violence’ (as it was still called) was the Court of Appeal judgment in another conjoined hearing of four appeals – Re L (Contact: Domestic Violence); Re V (Contact: Domestic Violence); Re M (Contact: Domestic Violence); Re H (Contact: Domestic Violence)  2 FCR 404;  2 FLR 334. The court heard from expert child psychiatrists who emphasised the need for greater awareness of the existence of and the consequences for children of, exposure to ‘domestic violence’ between parents and other partners.
Further initiatives were developed to improve the ways the courts handling of such cases, one being Family Proceedings Rule 2010: Practice Direction 12J- Child Arrangements and Contact Orders: Domestic Abuse and Harm (‘PD12J’) which was originally implemented in 2008. PD12J sets out a step by step guide over 40 paragraphs about what the court MUST do in cases where there is reason to believe that one party has perpetrated abuse or there is a risk this might happen.
Even wider initiatives are afoot – the Ministry of Justice is moving to implement their report: Assessing Risk of Harm to Children and Parents in Private Law Children Cases: (‘The Harm Panel Report’). At the same time, the Domestic Abuse Bill is before Parliament. In addition the President of the Family Division’s ‘Private Law Working Group’ (‘PLWG’) punished its second report in April 2020. The Harm Panel Report wishes to implement a more ‘investigative and problem solving’ approach to domestic abuse in the courts, rather than allow the current adversarial system to continue – pilots of Integrated Domestic Abuse Courts (IDAC) are being designed. The success or otherwise of such initiatives are clearly beyond the scope of any court judgment to examine, so the Court of Appeal restricted itself to general guidance about the current court processes.
General guidance relating to the current court process
The number of appeals against decisions in these cases are low but the Court of Appeal warns against complacency. When the stakes are so high, even a small amount of cases going wrong can cause deep unease and the public rightly seek to hold the Family Justice System to account when it fails.
While I take on board the significant developments in improved practice and procedure over the last 50 years, there is an immediate and angry elephant in the room which this appeal hearing illustrated starkly. Legal aid was removed in 2012 from private law cases, unless a ‘domestic violence’ exemption can be proven. That meant each of the mothers/appellants had the benefit of public funding whereas each father had to find solicitors and barristers willing to work for free. The Court of Appeal was of course grateful that this was done, but no court system can run on gratitude. There ought to be ‘equality of arms’ in these proceedings.
Increased awareness of ‘patterns of behaviour’.
The definition of ‘abuse’ was expanded in 2017. PD12J paragraph 3 reflects the need to move away from characterising domestic abuse as separate incidents of violence, but looking more to patterns of acts and incidents, including incidents of controlling, coercive or threatening behaviour which can be demonstrated by psychological, physical, sexual, financial, or emotional abuse. Domestic abuse also includes culturally specific forms of abuse including, but not limited to, forced marriage, honour-based violence, dowry-related abuse and transnational marriage abandonment. We have come a long way from the 1970s and the focus on ‘violence’ only. No one argued before the court that this definition of ‘abuse’ should change and the Court of Appeal concluded therefore that it was fit for purpose. Although the structure of the definition of ‘domestic abuse’ in clause 1 of the Domestic Abuse Bill [‘DAB’] currently before Parliament differs from that in PD12J, the content is substantially the same.
The Court of Appeal therefore concluded:
We are therefore of the view that PD12J is and remains, fit for the purpose for which it was designed namely to provide the courts with a structure enabling the court first to recognise all forms of domestic abuse and thereafter on how to approach such allegations when made in private law proceedings. As was also recognised by The Harm Panel, we are satisfied that the structure properly reflects modern concepts and understanding of domestic abuse
The key issue was whether the Judges ‘on the ground’ were properly implementing PD12J. Just before the Court of Appeal hearing in January 2021, Mr Justice Hayden handed down judgment in F v M  EWFC 4 in a case that involved a 2 week finding of fact hearing on allegations that centred on coercive or controlling behaviour. All the parties praised this judgment for its ‘comprehensive and lucid analysis’ and agreed with the plea within it urging greater prominence to be given to coercive and controlling behaviour in the Family Court which would involve more training. The judgment was considered ‘essential’ reading for the judiciary and also highlighted paragraph 60 of the statutory guidance published by the Home Office pursuant to Section 77 (1) of the Serious Crime Act 2015 which identified paradigm behaviours of controlling and coercive behaviour. I haven’t read that and now will, so I guess my ‘awareness’ has been usefully raised.
The Court of Appeal noted that it was also necessary to be clear what was NOT sufficiently bad behaviour to count as coercive or controlling
It is equally important to be clear that not all directive, assertive, stubborn or selfish behaviour, will be ‘abuse’ in the context of proceedings concerning the welfare of a child; much will turn on the intention of the perpetrator of the alleged abuse and on the harmful impact of the behaviour. We would endorse the approach taken by Peter Jackson LJ in Re L (Relocation: Second Appeal)  EWCA Civ 2121 (paragraph 61):“Few relationships lack instances of bad behaviour on the part of one or both parties at some time and it is a rare family case that does not contain complaints by one party against the other, and often complaints are made by both. Yet not all such behaviour will amount to ‘domestic abuse’, where ‘coercive behaviour’ is defined as behaviour that is ‘used to harm, punish, or frighten the victim…’ and ‘controlling behaviour’ as behaviour ‘designed to make a person subordinate…’ In cases where the alleged behaviour does not have this character it is likely to be unnecessary and disproportionate for detailed findings of fact to be made about the complaints; indeed, in such cases it will not be in the interests of the child or of justice for the court to allow itself to become another battleground for adult conflict.
What should the court do?
Once allegations of abuse are raised, the Court of Appeal identified four important questions to guide the court’s approach:
Whether there should be a finding of fact hearing – there is detailed guidance in PD12J about this.
The challenges presented by Scott Schedules as a means of pleading a case;
If a fact-finding hearing is necessary and proportionate, how should an allegation of domestic abuse be approached?
The relevance of criminal law concepts.
In essence, decisions about fact findings must be made at an early stage and any interim arrangements for contact must be safe for the child. The key words are ‘proportionality’ and ‘necessity’. We have to keep in mind the ‘overriding objective’ to deal with cases efficiently and recognise that resources are finite and need to be allocated to other cases than just our own.
As the President’s Guidance ‘The Road Ahead’ (June 2020) set out:
‘if the Family Court is to have any chance of delivering on the needs of children or adults who need protection from abuse, or of their families for a timely determination of applications, there will need to be a very radical reduction in the amount of time that the court affords to each hearing. Parties appearing before the court should expect the issues to be limited only to those which it is necessary to determine to dispose of the case, and for oral evidence or oral submissions to be cut down only to that which it is necessary for the court to hear.’
This immediately ushers in yet another angry elephants. I have never had a finding of fact hearing longer than five days in a domestic abuse case, and that was very rare. We are usually lucky if we can squeeze a handful of days out of court listing. Of course, restricting allegations to your ‘top six’ or ‘best 10’ do not enable proper investigation into coercive patterns of behaviour over many years – but unless the numbers of salaried judges expand dramatically, its difficult to see how two week findings of fact (or even two days) are going to become achievable within any realistic time frame. Therefore I am afraid I retain my usual bad tempered scepticism about the magic wand of ‘training’ . I am tolerably aware of coercive and controlling behaviour. But we need actual court time to conduct a proper hearing about such cases; they are unlikely to be able to slot into a day or two.
The Court of Appeal at para 54 did however echo my concerns
In promoting the need for courts to prioritise consideration of whether a pattern of coercive and/or controlling behaviour is established over and above the determination of any specific factual allegations, there is the potential that this additional layer of evaluation may add to an already lengthy forensic evaluative process. By example, the fact-finding hearing that had been listed in Re B-B (one of the four appeal cases before the court) was planned to last five days (that is 25 court hours) in order to consider five factual allegations.
And noted this was an important question which the Court of Appeal could not answer
How to meet the need to evaluate the existence, or otherwise, of a pattern of coercive and/or controlling behaviour without significantly increasing the scale and length of private law proceedings is therefore a most important, and not altogether straight- forward, question. It is a matter that will require consideration by others involved in working through the implications of the MOJ Harm Panel report, in implementing the Domestic Abuse Act and in any subsequent revision of revising PD12J as part of those two processes. The President will refer the anonymised skeleton arguments in these appeals to Mrs Justice Knowles (the lead judge on issues of domestic abuse) and to Mr Justice Cobb (the lead judge on private law matters) for consideration as part of that review.
Trying to spin the plates
In order to grapple with the clear tension between a fair investigation of what has actually happened in the parties relationship against the need to keep control over the length of court hearings, its clear that case management is the key. The court summarised the approach to fact findings:
consider the nature of the allegations and the extent to which they will be relevant to making order about children.
Keep in mind that the purpose of a finding of fact is to provide the basis for a risk assessment
Carefully consider if its ‘necessary’ or whether there is other evidence that provides a sufficient factual basis to proceed.
Does the fact finding need to be a separate hearing, or can it be bundled up with the final hearing?
CAFCASS made the very sensible suggestion that it would help to have more input from their officers at an earlier stage to help answer these questions and the Court of Appeal agreed this was a good idea worthy of more consideration.
Everyone agreed that Scott Schedules were useless and risked giving a false picture of what was happening in a relationship. The Court of Appeal agreed with the comments of Ms Mills QC on behalf of the second interveners, (‘Women’s Aid’, ‘Rights for Women’, ‘Rape Crisis England and Wales’ and ‘Welsh Women’s Aid’), who submitted that ‘the overwhelming majority of domestic abuse (particularly abuse perpetrated by men against women) is underpinned by coercive control and it is the overarching issue that ought to be tried first by the court. It is clear that the family court needed to move away from picking ‘your best 10’ allegations but considerations of how we move forward are limited to noting some suggestions at this time.
A number of suggestions were made by the parties in submissions including; a ‘threshold’ type document, similar to that used in public law proceedings, formal pleadings by way of particulars of claim as seen in civil proceedings and a narrative statement in prescribed form. The particular advantage of a narrative statement was, it was submitted, that it would allow there to be a focus on the overall nature of the relationship and expressly whether a party says that she had been harmed as a result of the behaviour and, if so, in what manner. Such an approach would allow the court to identify at an early stage whether an allegation of controlling and coercive behaviour is in issue. Identifying the form of harm (which may be psychological) and only then looking back at the more granular detail, would, it was submitted, allow the court to determine what specific facts need to be determined at a fact-finding hearing.
This all sounds very sensible and I hope we will see it translated into a Practice Direction soon.
The court offered the following ‘pointers’
PD12J is focused on child arrangement orders – it does not establish a free-standing jurisdiction to determine domestic abuse allegations that are not relevant to child welfare issues.
Fact finding hearings are to provide a factual basis for assessments or orders/interventions
Only allegations that are necessary for assessment purposes or particular orders should be considered
In every case where domestic abuse is alleged, both parents should be asked to describe in short terms (either in a written statement or orally at a preliminary hearing) the overall experience of being in a relationship with each other (this is an excellent idea!)
Where one or both parents assert that a pattern of coercive and/or controlling behaviour existed, and a fact-finding is necessary, that assertion should be the primary issue for determination at the fact- finding hearing. Any other, more specific, factual allegations should be selected for trial because of their potential probative relevance to the alleged pattern of behaviour, and not otherwise, unless any particular factual allegation is so serious that it justifies determination irrespective of any alleged pattern of coercive and/or controlling behaviour (a likely example being an allegation of rape).
The relevance of criminal law concepts
With regard to the last point about rape being justified as necessary allegation to determine, I maintain my concern that allegations of rape are for the criminal courts to be decided on the criminal standard of proof. The Court of Appeal said:
When considering domestic abuse, it will not infrequently be the case that the alleged behaviour will be such that it is capable both of being the subject of prosecution as an offence before the criminal courts and being the focus of consideration in the family courts as justification for the implementation of protective measures. The criminal law has developed a sophisticated and structured approach to the analysis of evidence of behaviour, to enable the criminal court to determine whether the guilt of the alleged offender has been proved to the requisite high standard. This raises the question of the degree to which the Family Court, if at all, should have regard to and deploy criminal law concepts in its own evaluation of the same or similar behaviour in the different context of Family proceedings.
The question was answered simply – it is not appropriate to use criminal law concepts in family proceedings. The two systems are fundamentally different with different aims and different standards of proof – criminal law concepts, such as the elements needed to establish guilt of a particular crime or a defence, have neither relevance nor function within a process of fact-finding in the Family Court.
The Court of Appeal commented that the authoritative statement of the law in this regard is that which is found in the judgments of McFarlane and Hickinbottom LJJ in Re R.
But I accept what the Court of Appeal says about allegations on rape in the family courts – perhaps the problem is me getting too caught up in criminal law concepts here.
Behaviour which falls short of establishing ‘rape’, for example, may nevertheless be profoundly abusive and should certainly not be ignored or met with a finding akin to ‘not guilty’ in the family context. For example in the context of the Family Court considering whether there has been a pattern of abusive behaviour, the border line as between ‘consent’ and ‘submission’ may be less significant than it would be in the criminal trial of an allegation of rape or sexual assault.
Will those who see the family courts as a misogynistic tool of oppression welcome this judgment ?
This judgment is I suspect, not going to be welcomed happily by those who would have accepted nothing less than the collective family court system falling on a massive sword and accepting its inability to recognise or deal with domestic abuse cases. The Court of Appeal rejected any suggestion that the family court system has yet to be dragged into the ‘modern approach’ but warned judges who fail to properly direct their minds:
We are confident that the modern approach that we have described is already well understood and has become embedded through training and experience in the practice of the vast majority of judges and magistrates sitting in the Family Court. Where however an issue properly arises as to whether there has been a pattern of coercive and/or controlling abusive behaviour within a family, and the determination of that issue is likely to be relevant to the assessment of the risk of future harm, a judge who fails expressly to consider the issue may be held on appeal to have fallen into error.
3 of the 4 appeals succeeded. The decisions were made on long-established principles of fairness. They do not establish any ‘new law’ nor any binding precedent. I will therefore not discuss them here, but as ever it is instructive to read and consider what went wrong and how we might avoid repeating such mistakes in future cases. Every appeal of a family court judgement represents a failure, represents avoidable pain and misery caused to adults and children. But the fact that a small percentage of judgments need to be appealed, does not mean the whole system is rotten. Any system requiring input from humans will fail at times. We have to do the best to limit those failures; it is magical thinking to expect them to be avoided entirely.
While the Court of Appeal welcomed and described the further training for Judges, such as a now mandatory free standing sexual assault awareness training programme, it did not accept that the failures under their current investigation are indicative of a systemic failure to appreciate the nature and significance of domestic abuse.