Author Archives: Sarah Phillimore

Transparency, debate and Satanists: A Plea to the Family Courts

I think it is important to challenge people who ‘are wrong on the internet’. Not because I am naive enough to think I will have much of an impact on individuals who are driven by something other than reason and logic. I will continue to crusade in defence of the general principle that evil will triumph if we just sit back and do nothing.

Further, I think challenge is important as many of those who obsessively campaign in aggressive and intimidatory ways on social media appear to rely on official indifference to their activities and the ease with which they can threaten others with apparent impunity.

There is a view often expressed that one should not give ‘the oxygen of publicity’ to such people and that attempting to tackle them is counter-productive. I understand and often agree with that view. But there is a significant subset of these campaigners who should be challenged as they have serious reach and influence. And they will not stop.

The Hampstead Hoaxers have the dubious accolade of being among the nastiest and most persistent of the obsessive conspiracy theorists which are abundant on the internet. If you don’t know what I mean by ‘Hampstead Hoaxers’ – I think you should. I commend the entirety of the Hoaxtead Research web site to your attention, and Anna Raccoon has provided a useful summary here.

In short, in 2014 allegations were made against individuals in Hampstead that they participated in organised satanic ritual abuse involving about 20 children. These children were routinely buggered at school and made to eat babies, who were turned into burgers at the  local MacDonalds. These allegations were obviously insane and found to be so at a fact finding hearing in the High Court. Mrs Justice Pauffley issued injunctions against named individuals to prevent them further publishing their false allegations – in particular to refrain from continuing to publish on line videos of two of the children. As is obvious, such activities were very harmful to the children, given the high probability that a good proportion of the millions who have so far seen the videos were deriving sexual pleasure from them.

Those injunctions were never enforced – apparently on the basis that to cause any further fuss would just encourage the conspirators to keep on going. That may have seemed a reasonable decision at the time. But with hindsight, it was a grave error. The conspirators kept on going.

An attempt was made to bring to book two of the most virulent and prolific campaigners in July by charging them with witness intimidation. That failed as although intimidation was the inevitable by product of their campaigning, this wasn’t sufficient to establish the necessary criminal element of intention. But happily, the Judge made indefinite restraining orders against both, to prevent any further publication of allegations which at the outset of the trial all lawyers accepted were false. Details about the hearing and the astonishing behaviour of their lawyer Aseem Taj can be found at Hoaxtead Research.

News of this seemed to reanimate the Hoaxers on line who popped up on my Twitter timeline to make all kinds of astonishing allegations, including the apparently popular assertion that I (or anyone who challenges them) is actually one of the Satanists masquerading under a false identity.

I can laugh this off. Although it really isn’t funny. And it represents just a tiny fragment of what the residents of Hampstead have had to face for over two years now.  In the face of an apparently indifferent and/or toothless Family Court that cannot or will not see its own injunctions enforced. I appreciate there are enormous difficulties in dealing with those who operate outside the jurisdiction – but many don’t. Many are right here, right now.

This is a personal tragedy for the individuals in Hampstead whose lives have been blighted and whose children’s safety has been compromised. But it is also a more general tragedy – for the robustness of our legal system, and the respect we are encouraged to have for it,

An issue of particular interest to me are the potentially damaging ramifications for the debate over transparency in the family courts. The Transparency Project – of which I am a member – has been commenting with increasing concern about the apparent stalling of the President of the Family Division’s ‘transparency agenda’, first announced in 2014. Apart from an increase in ad hoc publication of judgments from some individual judges, we seem no further forward in 2016. My worry is that this is due to the concentrated resistance to any increased transparency in family proceedings from certain groups of lawyers and social workers.

They fear that children will be the ones to suffer if there is any move to more openness in the way family court hearings are conducted and/or reported. Of course I understand that – it is a real and serious concern. But other jurisdictions are more open in what they will allow to be discussed and publicly available about family cases and we need to think more carefully about how they make it work and what we could be doing.

But it should not be allowed to stifle the debate to the extent that I am afraid it has. Because look what is rushing in to fill the gap we leave by our unwillingness to bring our practice and procedure out into the disinfecting sunlight. Look, and be worried.

We simply cannot go on ignoring these people and pretending this doesn’t matter.

Co-Dependency – what does it mean? and what are the consequences?

Co dependency – part of the answer?

This is a post by a contributor to the site, who wishes to remain anonymous but who tweets as @DVhurts. It arose after conversations on Twitter about what we can do to help parents when their relationships have broken down and their children are caught in the middle. Is it the primary responsibility of the family courts to fix this? Or do we need to take more ownership of the relationship choices that we make?

Sarah has been busy arguing on Twitter again, this time about why women have children with men they dislike. (Er, engaging in profound debate surely? Ed) Unfortunately I ran out of time to join in but it did start me thinking and this is what I believe is part of the answer. I am a codependent myself who is in recovery. This is only a very brief overview, please look at the resources listed to find out more.

Who is codependent?

Anyone can be is the short answer. More often than not though co dependents are adults who as children felt responsibility for a dysfunctional family member or a situation that was not their fault. They may have an addicted father, or be a young carer or simply they may be the first person in the family to be clever enough to go to university when that was their parents ambition. They take on too much at a young age and looking after people becomes their default setting.

Fear shame and guilt drive them. It can run in families and recovered addicts can be codependent themselves for instance as parents . They are overly serious and the responsibility for the world rest on their shoulders. They will give you the coat off their back and catch pneumonia themselves.

They form relationships with more laid back and sometimes downright irresponsible and try to change them. When they can’t they don’t quit, but try another tactic until they are worn out, bitter, broke etc… A codependent does not learn the lesson, unless they get help but tries again with the same type of partner.

Melody Beattie’s book explains their behaviour :

Codependents are reactionaries. They overreact. They under-react. But rarely do they act. They react to the problems, pains, lives, and behaviors of others. They react to their own problems, pains, and behaviors.

They react out of fear, they rescue people this may be a partner, a child, a client a relative or friend. They pay off debts that are not theirs, they make excuses about another’s unacceptable behaviour,they put up bail, they worry obsessively . They are attracted to “sick ” people , alcoholics, addicts, over eaters or a mentally or physically ill person because they are caretakers.

Their self worth is completely intertwined with the other person. A codependent can tell you everything about what the significant other needs but has no idea about what their own needs are. They have very low self esteem and even self hatred, they are over tolerant of abuse and unacceptable behaviour towards them. They can be angry, bitter, anxious, depressed and have significant mood swings:

Ever since people first existed, they have been doing all the things we label “codependent.” They have worried themselves sick about other people. They have tried to help in ways that didn’t help. They have said yes when they meant no. They have tried to make other people see things their way. They have bent over backwards avoiding hurting people’s feelings and, in so doing, have hurt themselves. They have been afraid to trust their feelings. They have believed lies and then felt betrayed. They have wanted to get even and punish others. They have felt so angry they wanted to kill. They have struggled for their rights while other people said they didn’t have any. They have worn sackcloth because they didn’t believe they deserved silk.”

Melody Beattie, Codependent No More: How to Stop Controlling Others and Start Caring for Yourself

Codependents can be male or female, though probably a higher percentage are woman as culture expects women to be carers

Could I be codependent?

Do you finish your partner’s sentences but don’t know what you think yourself?
Do you reject “boring” partners for the more risky ones and when they display risky behaviours forgive them time and again because it will be better next time?
Have you ever pretended that serious problems caused by your partner are not happening?
Are you being physically, emotionally,financially or sexually abused?
Do you ever feel abandoned by your partner and keep tabs on them?
Do you have unexplained physical problems, chest pain, stomach pain, numbness, headaches or sleep problems?
Is your partner the centre of your world and your think and talk endlessly about them?
Are you bottom of the queue when it comes to spending your money yet you splash out on others?
Do you constantly criticize yourself and reject praise.
Do you only feel truly alive when helping others?
Have you settled for being needed?
Do you have great difficulty saying no?
Have no trust in yourself?
Is your relationship chaotic and you daily feel out of control?
Is your head like a washing machine on spin cycle?
Do you have a life script: if I can make them go to rehab,stop them seeing certain friends ,get them a decent job we WILL live happily ever after.
Is it difficult to sit quietly?
Are you living with something that you would normally find unacceptable such drunkenness?
Are you lonely despite being in this very intense relationship?
Do you prefer to live in a dysfunctional relationship because you are too scared to live by yourself?
Have you sent your partner/parent/child/friend to counselling/rehab/hypnotherapy etc thinking this would be the solution and been enraged when it wasn’t?
Do you put your partners needs above everyone else including your children?
Do you constantly excuse and lie for your partner/child etc?
Are you ashamed of your feelings of anger , sadness?
Do you struggle to stay in the day but have thoughts of they should and what if constantly running through your mind?
Is your partner similar to your mother, father, brother etc?

It requires a hard look at what is, rather than what you hope will be. As you let go of managing and controlling, you must also let go of the idea that “when he changes I’ll be happy.” He may never change. You must stop trying to make him. And you must learn to be happy anyway.

Robin Norwood, Women Who Love Too Much

If you are ready to admit you need help.

Codependents rarely seek help until they are the bottom of a very deep hole, after all they are resourceful, and have numerous mechanisms for coping with what life throws at them. At some point though, normally after some years, the penny starts to drop.

The good news is there a lot of help for codependents and most of it is provided by charities who don’t charge but are run on voluntary contributions.

A number of those who identify as codependents will be in a relationship with an alcoholic, a gambler or someone else who has addictive traits. Many are 12 step programmes based on the original AA concept.”Hi I’m Joe and I ‘m an alcoholic.” That’s about as much as most people know about AA and other 12 step programmes.

In 2012 research from the Children’s Commissioner indicated that over 62% of care proceedings involved alcohol misuse. That’s without taking drugs into account.

It is said for every alcoholic six other people contacted with them are affected, It is said only an alcoholic can understand an alcoholic likewise only someone affected by a family member’s alcoholism can understand how their personality has adapted to deal with the circumstances. These family members can seek help through the Al Anon family groups and younger family members through Alateen. Likewise those affected by a family members drug addiction, gambling or eating disorder can also find strength and hope amongst those who have been in the same situation .

I would also recommend courses that increase self esteem and assertiveness. Cognitive Behaviour Therapy (CBT) can turn off that washing machine head and offer options for what can seem to unsolvable problems.

http://www.al-anonuk.org.uk/

http://www.coda-uk.org/

http://www.gam-anon.org/

http://www.nar-anon.co.uk/

This is not an extensive list but a start. There is help, but it is the co dependent who has to put their needs first and start to look for it. They cannot change another person (came as a revelation to me!) but they can change their own lives for the better and that also leads onto healthier relationships.

Sticks and Stones….

This is a post by Sarah Phillimore

I have been thinking a lot in the aftermath of the EU Referendum, about how we speak to and about each other and the impact that has on our willingness to listen and try to understand. Most people, it seems to me, will ‘mirror’ the attitude and responses of the other in conversation – if you go in fighting, you will encourage a combative response. But what is the impact of this on the subject matter under discussion, on the prospects of shared understanding? Particularly in an arena such as a family court in care proceedings where the issues under discussion are going to impact on adults and children for the rest of their lives, or even into the next generations.  Cross examination should never be perceived as a ‘game’ – if it is, it’s a game that no one wins. 

 

The impact of the adversarial system of cross examination on social workers giving evidence.

I had an interesting chat with a social worker when I represented a LA last week. She had been in her post seven years so I simply assumed she had lots of experience in giving evidence in court and being cross examined. I was very surprised when she told me that my assumption was way off – in that 7 years she had given evidence on just two occasions, and the last one was 3 years ago. She had never received any training in how to present evidence in court or deal with cross examination and felt that the necessary support from managers at court was sometimes lacking.

She said that she felt that a lot of lawyers treated it as a game or a piece of theatre and a brutal cross examination was very difficult for social workers to cope with. Of course, for those of us who conduct contested hearings day in, day out we do become habituated to our work and probably de-sensitised. As lawyers we probably need to be more aware of this and more aware of the consequences for those we cross examine. The SW explained that she felt very nervous about the prospect of giving evidence in what we both agreed was a finely balanced case and it was giving her real pause for thought about whether she wanted to carry on with her job.

She, like many other SW was juggling a case load well in excess of what could be sensibly managed. It is little wonder that SW get apprehensive about how to defend their statements in court if they don’t have sufficient time or proper supervision to get their case in order. Is our current system really the best way we can devise to protect parents’ rights to a fair trial but without losing focus on the needs of the child?

What is the current training offered to social workers about how to cope with giving evidence in court? This social worker had none. Is it different for the newly qualified social worker today? Or should the focus rather be, not to train social workers to better withstand aggressive cross examination, but rather moving more explicitly to an inquisitorial system to try to determine what is best for children.

EDIT July 13th

Thanks for this comment from a reader who wished to remain anonymous. I am surprised again to hear that the police also get no formal training!  This does appear to be another example of the dangers of ‘silo working’ – when we have little or no appreciation about how other organisations work.

One reader commented that he suspected that social workers got no formal training about giving evidence, in the same way that most police officers get no training – which again, came as a surprise to me. There are some local schemes where magistrates go to talk to social work students about the court system and decision making but it seems clear that this is a fairly ad hoc arrangement and dependent on the availability and good will of the magistrates.

Happy Edit July 20th

As a result of Twitter conversations prompted by this post, hopefully I will be visiting Huddersfield next year with some other barrister colleagues, to take  part in some training for social workers in a mock trial. Useful evidence that Twitter is not just a playground for the bored and mad.

Residential Care for Children in England – A reader’s perspective

I am grateful for this contribution from one of our readers, who was inspired to write following publication of Martin Narey’s recent report into Childrens Homes. Should more of the money currently being used to provide residential or foster care for children be used to support families instead?

 

A Relative’s View on Children’s Homes

If you ever meet a strange person gingerly crossing a wooden bridge looking as though they think they are going to fall through the gaps that they couldn’t possibly fall through that is probably me.It is as a result of a childhood trauma of having to cross a wooden railway bridge going to visit my half brother in who lived apart from me in a Children’s home. I both loved visiting and hated leaving without him believing as small children do that it was my fault that he was there.

He was placed in the home aged 2 by his father when my Mum fled from what would now be called coercive control. My Mum was told by what was then Social Services that she had no say in the matter and there was never a court case. There was no social services involvement at all in my childhood, but the impactof being apart my brother has been lifelong has now spanned three generations.

 

My Observations:

Children in children’s homes are more likely to be living away from their local communities than those in foster care (37% are placed more than 20 miles from home and outside their local authority) Recommendation 7: I urge local authorities and consortia to be cautious about following any hard and fast rule about placement distance and to recognise that the right placement for a child is more important than location. They should no longer impose geographical restrictions on where homes must be located in order to be included in contracts.

This really does not work to maintain family ties and it seems to be a secondary consideration. These family ties once stretched are very difficult to strengthen again, my Mum describes the tie to her son as thin as a thread. I myself know very little about my brother’s childhood as he doesn’t speak about it. Isolation is a key factor in development of mental illness and children leaving care are very likely to be isolated.

 

The average weekly cost of a place in a children’s home is approximately £3,000, with little difference in cost between local authority, voluntary sector and private sector provision

My Mum needed support not condemnation, in her day single mothers were scorned, she soon got her self straight, but even then wasn’t allowed to have her son back. I really do not see any change today time and again we hear some Local Authorities would rather shell out this average of £156,000 per year rather than support parents with much lower outlay.

 

But fostering is the right choice for most children who cannot return home, enter special guardianship, or who are unsuitable for adoption. And local authorities must treat it as the first option, not least because it is much less expensive than residential care. According to DfE, the average cost of foster care has been estimated at around £600 per child per week compared to around £3,000 per week for a child living in a children’s home.

My brother stayed in the same home for 14 years, I do not know if fostering was considered at all. Today I do not believe that all Local Authorities consider fostering as a first option especially if a child has special needs, yet they will wriggle out of their obligations to provide support to such familes which would stop problems escalating to crisis in the first place.

 

“In 2014-15, eight commercial fostering agencies made around £41m profit between them from providing foster placements to local authorities. This is pure profit. It’s after allowances for foster carers, staffing costs and support services… The fact that £41m of public taxpayers’ money, allocated to support children in state care, actually ended up in the pockets of … some seriously rich capital firms is obscene.”

I agree with the last word. Imagine what £41m could do if used to support families.

 

The Howard League believe that children are “pushed into the criminal justice system by homes which are supposed to be helping them.”86 And the Prison Reform Trust (PRT) – which published its own report on this subject just a few weeks after the Howard League – was reported as saying that “children in care are sucked into the criminal justice system for trivial reasons.”87 It is a pity that statement did not reflect the more nuanced conclusions of the PRT report, because, like the Howard League assertion, I believe it to be unfair. The Prison Reform Trust’s laudable aim is that children in residential care – as far as is possible – are diverted from the criminal justice system and, particularly, from custody.

Sir Martin Narey does not believe that children are being criminalized, this is actually what I find to be the most disturbing part of the report. From my experience they most certainly are for the most trivial of reasons and they are victims of crime within the homes.All is not rosy.

 

Alongside this:

Recommendation 16: The Department for Education, in consultation with Ofsted, needs to reconsider their guidance – taking account of recent Court judgements – to ensure that staff are able to keep children safe by preventing them leaving homes at time of danger, either by locking doors or using restraint, and that they can be confident in the legality of their doing so.

I do not know the legality of these measures, but I can see them being open to abuse.

I know from my family situation, being brought up in a Childrens home is certainly no substitute for family life, it leaves deep scars on the child, siblings , parents and grandparents. No matter how many decorations are put up pronouncing home is where the heart is or other such sentiments it is not the ideal place for a child to grow up in. It is rarely stable, there are many moves and children grow up not having the first clue about family life. It really is time for a policy change, to start using some of the obscene costs to actually support children and familes.

International Research Conference on Family Justice: Achieving Justice for Children and their Families.

This sounds like a very interesting two days, with an impressive line up of keynote speakers. I hope to be there in some capacity. 

Northumbria University, Newcastle, 8 – 9 October 2016.

Northumbria University is delighted to host this two day International Research Conference which will provide delegates with the opportunity to share experiences of the impact of reforms to family justice in the UK, and discuss strategies and solutions for enabling children and their families to access justice when they are in crisis and turn to a system for help.

The family justice system is the legal framework that underpins the regulation of disputes in respect of the family or between members of the family and the state. It involves the court, professionals, parents and children, from the pre-proceedings stage, and until the outcome of a dispute is resolved.

There are two broad domains in law:

Private law – concerned with how the law determines the status, finances and property allocation and child caring arrangements of families, such as in cases of divorce or cohabitation breakdown.
Public law – which involves situations when the state intervenes directly to protect children, who are considered to be suffering, or at risk.
Family justice requires more than a legal framework, it must be a system that can provide advice and support at times when families are in crisis.

It is acknowledged that effective mechanisms for negotiation, dispute management and resolution, must be pivotal to this system. Going to court should always be the final option when all other alternatives have been explored.

Following the implementation of the Public Law Outline in 2008, and the modernization of the family justice system, we have experienced change that has been referred to as a ‘revolution’ in the family courts. The experience on the ground from a range of professionals has been of widespread confusion and uncertainty.

Overview

In addition, delegates will discuss the increasing reliance on self-help services and when people are most in need, and the availability of good legal advice. It will provide an opportunity for delegates from a range of professional backgrounds to consider the issues involved, including the perspectives and experiences of families and children at the heart of the process, and to reflect on changes we can make to improve work at the frontline.

Professor Kim Holt, Professor of Social Justice and Family Law, Health and Life Sciences shall be chairing the conference which will cover a diverse range of themes including:

Advocacy and Capacity: the rhetoric and reality of representation for parents and children
Relationship-based approaches to working with families
Research in Family Justice: possibilities and constraints
Innovation and Empowering Interventions
Comparative Approaches to Family Justice: commonalities and differences from International Jurisdictions
Throughout the two day conference delegates will hear from a host of keynote speakers

Rt. Hon. Sir James Munby, President of the Family Division and Head of Family Justice
Professor Brid Featherstone, Professor of Social Work, University of Huddersfield
Professor Judith Masson, Professor of Socio-Legal Studies, University of Bristol
Nicholas Stonor QC, Trinity Chambers Newcastle
Professor Kathryn Abel, Professor of Psychological Medicine, University of Manchester
Professor Karen Broadhurst, Professor of Social Work, Lancaster University

Please click here to see the full programme.

Papers and abstract submission

We would welcome abstracts based on the above theme. Please click here for further information. To submit your abstract please email [email protected]. The deadline for submission is Friday, 1 July 2016. Authors will receive a decision on abstracts from the conference panel by Friday, 29 July 2016.

If you have any conference queries, please contact [email protected]

Conference Fees

Conference Fee Early Bird Fee £325 (Early Bird registration closes on Friday, 1 July 2016)

Full Conference Fee £375

The conference fee itself includes the following items:

Conference Pack
Hospitality across the two days
Conference Dinner on Saturday, 8 October 2016 which provide delegates with a further opportunity to network
Conference Dinner

Specific details about the conference dinner will be made available soon.

To book your accomodation, please click here.

To book your place, please click here.

What happens when a child gets hurt and we don’t know who did it?

In the light of concerns about the Ben Butler case in June 2016, this post by Sarah Phillimore attempts to explain the law that will apply in the family courts when a child has been hurt and there are a number of adults who could have done it – the so called ‘pool of perpetrators’.

If you want to know more about the practicalities of the court process from a parent’s perspective, please see this guest post by Suesspiciousminds  ‘The Social Worker tells me my child has been hurt’. 

There is often confusion expressed about why both criminal AND family cases can run together, based on the same concerns that a child has been hurt. In some cases, the criminal proceedings will stop or not even start and only the family case continues. This is because of the different roles and responsibilities of the criminal and family courts. Criminal courts, in essence, exist to identify criminals and punish them. As punishment can involve a deprivation of liberty by sending someone to prison, the standard of proof is high – ‘beyond reasonable doubt’.

Family cases however are about protecting children so the focus is different and the standard of proof is lower. There are many parents however who argue that it is simply wrong to make findings about children being injured and remove them from their families on the basis of that lower standard of proof. However, it will probably take an Act of Parliament to change this as Judges are now very clearly bound by decisions of the Supreme Court. 

 

The relevant law – general principles about establishing facts

The court should consider the following issues when it needs to make a finding about what happened in any particular case:

  • Articles 6 and 8 of the European Convention on Human Rights [ECHR] which means the court must respect the right to family life and the right to a fair trial.
  • A finding of fact by a Judge that someone hurt a child is a serious thing; therefore anyone at risk of such a finding being made against them must have a chance to be part of the court proceedings and be able to make their case. If someone is a vulnerable adult and needs help from, for e.g. an intermediary, this should be considered by everyone at an early stage
  • The ‘burden of proof’ lies on the person who makes the allegation, in this case the local authority. This means that it is not the adult’s responsibility to prove they did not hurt the child; the local authority must prove they did.

Burden and standard of proof in ‘binary’ system

  • The standard of proof is the ‘balance of probabilities’ – it must be more than 50% likely that something happened: see Re B (Care Proceedings: Standard of proof) [2008] UKHL 35. In the words of Baroness Hale at paragraph 70: “I…would announce loud and clear that that the standard of proof in finding the facts necessary to establish the threshold at s31 (2) or the welfare considerations at s1 of the 1989 Act is the simple balance of probabilities, neither more not less. Neither the seriousness of the allegations nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies”.
  • If a fact is to be proved the law operates a ‘binary system’ which means it is either true or it is not.
  • Findings of fact must be based on evidence not speculation. As Munby LJ (as he then was) observed in Re A (Fact Finding: Disputed findings) [2011] 1 FLR 1817 “it is an elementary position that findings of fact must be based on evidence, including inferences that can be properly drawn from evidence and not suspicion or speculation”.
  • The court’s task is to make findings based on an overall assessment of all the available evidence. In the words of Butler-Sloss P in Re T [2004] 2 FLR 838: “Evidence cannot be evaluated and assessed separately in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof”.
  • If it is suggested that something is ‘very unlikely’ to have happened, that does not have an impact on the standard of proof. See BR (Proof of Facts) [2015] EWFC 41 (11 May 2015) where Jackson J commented at paras 3 and 4:
    The court takes account of any inherent probability or improbability of an event having occurred as part of a natural process of reasoning. But the fact that an event is a very common one does not lower the standard of probability to which it must be proved. Nor does the fact that an event is very uncommon raise the standard of proof that must be satisfied before it can be said to have occurred.
    Similarly, the frequency or infrequency with which an event generally occurs cannot divert attention from the question of whether it actually occurred. As Mr Rowley QC and Ms Bannon felicitously observed:
    “Improbable events occur all the time. Probability itself is a weak prognosticator of occurrence in any given case. Unlikely, even highly unlikely things, do happen. Somebody wins the lottery most weeks; children are struck by lightning. The individual probability of any given person enjoying or suffering either fate is extremely low.”
    I agree. It is exceptionally unusual for a baby to sustain so many fractures, but this baby did. The inherent improbability of a devoted parent inflicting such widespread, serious injuries is high, but then so is the inherent improbability of this being the first example of an as yet undiscovered medical condition. Clearly, in this and every case, the answer is not to be found in the inherent probabilities but in the evidence, and it is when analysing the evidence that the court takes account of the probabilities.

What happens if a witness lies about something?

  • An important part of the assessment is what the court thinks about the reliability of the adult’s evidence. The court will be worried if someone is found to have lied about something, but that does not necessarily mean that person has lied about everything. The court will keep in mind the warning in R v Lucas [1981] QB 720 that “if a court concludes that a witness has lied about a matter, it does not follow that he has lied about everything. A witness may lie for many reasons, for example out of shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure”.

Expert witnesses

  • With regard to evidence provided by expert witnesses, the court should consider the following:
    • First, whilst it may be appropriate to attach great weight to clear and persuasive expert evidence it is important to remember that the roles of the court and expert are distinct and that it is the court that is in the position to weigh the expert evidence against the other evidence: see, for example, Baker J in Re J-S (A Minor) [2012] EWHC 1370.
    • Secondly, the court should always remember that today’s medical certainty may be disregarded by the next generation of experts. As Hedley J observed in Re R (Care Proceedings Causation) [2011] EWHC 1715 “there has to be factored into every case…a consideration as to whether the cause is unknown”.

Particular considerations in a case when a child has suffered injury

The court will consider the decision of the Supreme Court in in Re S-B (children) (non-accidental injury) [2009] UKSC 17.

Was the injury an accident?

  • If the court is satisfied that the child sustained injuries, the first question is whether they were caused ‘non accidentally’.
  • The court is reminded of the comments of Ryder LJ about the expression “non-accidental injury” in S (A Child) [2014] EWCA Civ 25:-I make no criticism of its use but it is a ‘catch-all’ for everything that is not an accident. It is also a tautology: the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong. That element of wrong may involve a lack of care and/or an intent of a greater or lesser degree that may amount to negligence, recklessness or deliberate infliction. While an analysis of that kind may be helpful to distinguish deliberate infliction from say negligence, it is unnecessary in any consideration of whether the threshold criteria are satisfied because what the statute requires is something different namely, findings of fact that at least satisfy the significant harm, attributability and objective standard of care elements of section 31(2).
  • For an example of an injury deemed accidental, see EF (a child), Re [2016] EWFC B107 (15 September 2016) the court accepted the parents’ account and thus the LA had not made out its case.

If it wasn’t an accident – who did it?

  • Having established the injury was not an accident, attention turns to whether or not the court can say who caused the injury. The ‘threshold criteria’ (what the court needs to find proved in order to make a care order) can be established by findings that a child has suffered harm whilst in the care of his parents, or other carers, without the need to establish precisely who caused the injuries. Nevertheless, where possible, it is clearly a good idea to identify who has caused the injuries:
    • to be as clear as possible about future risks to the child and how to deal with those risks.
    • The child has a right to know what happened to him, if it is possible to find out.

How hard should the court try to find out who did it?

  • However, the court should not ‘strain unnecessarily’ to identify who hurt the child. If the evidence does not support a specific finding against an individual(s) the court should attempt to identify the ‘pool’ of possible perpetrators. See Lancashire CC v B [2000] 2 AC 147 and North Yorkshire CC v SA [2003] 2 FLR 849.
    • The identification of a pool of possible perpetrators is sometimes necessary in order to determine if the child’s parents or carers are to blame for the harm suffered by the child. If the child was hurt by someone outside the home or family – for example by someone at school or at hospital – then it would usually be unfair to say that this is the parent’s/carer’s fault.
    • In considering whether a particular individual should be within the pool of possible perpetrators the test is whether there is a real possibility that he or she was involved.
    • If the court identifies a pool of possible perpetrators the court should be wary about expressing any view as to the percentage likelihood of each or any of those persons being the actual perpetrator. (In the words of Thorpe LJ: “Better to leave it thus”).

What happens in the future if a parent is found to be in the ‘pool of perpetrators?’

As a parent, this could have a serious impact on your current or future family life. You may find that you need to submit to a risk assessment from the local authority if you want to care for your children.

However, if you become involved in care proceedings in the future, the court is clear that a previous finding that you were ‘in the pool’ can NOT be treated as simply ‘proof’ that you hurt a child and it cannot be used in this way as part of any threshold document to assert that your current children are at risk.

However, the fact that a parent was part of a household where a child suffered injury, cannot just be ignored and will need to form part of a careful assessment of current circumstances.

See In the matter of J (Children) [2013] SC 9 – the judgment of Lady Hale at para 52:

52. It is, of course, a fact that a previous child has been injured or even killed while in the same household as this parent. No-one has ever suggested that that fact should be ignored. Such a fact normally comes associated with innumerable other facts which may be relevant to the prediction of future harm to another child. How many injuries were there? When and how were they caused? On how many occasions were they inflicted? How obvious will they have been? Was the child in pain or unable to use his limbs? Would any ordinary parent have noticed this? Was there a delay in seeking medical attention? Was there concealment from or active deception of the authorities? What do those facts tell us about the child care capacities of the parent with whom we are concerned?

53. Then, of course, those facts must be set alongside other facts. What were the household circumstances at the time? Did drink and/or drugs feature? Was there violence between the adults? How have things changed since? Has this parent left the old relationship? Has she entered a new one? Is it different? What does this combination of facts tell us about the likelihood of harm to any of the individual children with whom the court is now concerned? Does what happened several years ago to a tiny baby in very different circumstances enable us to predict the likelihood of significant harm to much older children in a completely new household?

54. Hence I agree entirely with McFarlane LJ when he said that In re S-B is not authority for the proposition that “if you cannot identify the past perpetrator, you cannot establish future likelihood” (para 111). There may, or may not, be a multitude of established facts from which such a likelihood can be established. There is no substitute for a careful, individualised assessment of where those facts take one. But In re S-B is authority for the proposition that a real possibility that this parent has harmed a child in the past is not, by itself, sufficient to establish the likelihood that she will cause harm to another child in the future.

It is very important to investigate all the surrounding circumstances thoroughly and not to risk reversing the burden of proof. The Court of Appeal commented in B (Children : Uncertain Perpetrator) (Rev 1) [2019] EWCA Civ 575 (04 April 2019) that it might be better to talk more about a ‘list’ than a ‘pool’.

Further reading

Barristers at 6 Pump Court consider recent developments in the law relating to injuries to very young children, 22 March 2017.

We believe you harmed your child: the war over shaken baby convictions The Guardian 8 Dec 2017 

Guidance from the Ministry of Justice about ‘Settlement Conferences’

I was sent this guidance in June 2016, relating to the ‘settlement conference’ pilot that will be taking place between June and October 2016 in selected court centres. It will be interesting to see how it develops (I have already suggested that one case would be suitable) – but it does appear to be attempting to achieve what the Issues Resolution Hearing was originally designed to do!

Settlement Conferences

The government is testing a new collaborative approach to dealing with public law family cases (“care cases”) called a settlement conference. If parties consent, they will be involved in this test (called ‘a pilot’). This guidance provides information on what will be happening during the pilot and what the government will be measuring.

A settlement conference is a hearing held for the purpose of discussion and settlement of the case. It is a without prejudice hearing that takes place before a judge with the consent of all the parties.

A without prejudice hearing means that what is said and discussed during the settlement conference will not be admissible in evidence (except at the trial of a person for an offence committed at the conference or in the exceptional circumstances indicated in Re D (Minors) (Conciliation: Disclosure of Information) [1993] Fam 231, where a statement is made clearly indicating that the maker has in the past caused or is likely in the future to cause serious harm to the well-being of a child). The judge hearing the settlement conference must have no further involvement with the case, other than to make a final order by agreement or a further directions order. The purpose is to try to resolve some or all the issues by agreement. Parties will attend with their legal representatives (where instructed) but are encouraged to speak directly with the judge with the aim of settling the case or particular issues.

The judge hearing a settlement conference will be different to that of the trial judge. They will be specially trained in dealing with hearings of this type. The settlement conference judge is a different person. Before the conference, they will have read the case file and might ask the parties questions during the conference.

The judge may not make an order resolving some, or all, of the issues without the agreement of all parties. Where an application is for adoption or placement, a judge may give a judgment with the agreement of the parties (e.g in care order or placement order application where there is no opposition to the same.)

Process

Settlement conferences will take place for public law cases. They will ordinarily take place after an Issues Resolution Hearing (IRH) At the IRH, the parties will be asked if they consent to take part in a settlement conference to be assisted by a judge, other than the trial judge. The court will still list the case for a final hearing date as well as a settlement conference date at IRH stage to ensure there is no delay if the matter is not resolved and a final hearing needs to take place.

During the settlement conference the judge will work with parties in a way that promotes settlement. There is no obligation or pressure to agree to anything at a settlement conference. If agreement is not reached, the case will proceed to final hearing.

At the end of the settlement conference if there is agreement on all matters, the case will end and an order drafted reflecting the decisions made; the parties will not have to attend a final hearing. If some or all of the issues remain outstanding the parties will come back to court for the final hearing or adjourned settlement conference if appropriate.

What will happen in the pilot and what are we collecting

The pilot will be testing how these settlement conferences work. At the end of the settlement conference the judge will fill in a form (see attached). The form the judge is asked to fill in will help the government understand the reasons why a case is referred to a settlement conference, the outcome, time spent on preparing and facilitating the conference, the number of final hearing days listed and the estimated number of days saved (if a case settles). No personal details about the parties will be recorded.

From July selected judges, Cafcass representatives, local authority solicitors and lawyers involved in the process will be asked to take part in interviews and workshops where they will be asked about their experiences of settlement conferences. They will not be naming individuals that they have worked with, they will only be asked about what they think about the process, what went well and what did not go well. If you (as a party of the proceeding) would like to give feedback on what you thought about the settlement conference you can tell your legal representative who may be asked to provide this as part of the research.

How long with the pilot last?

5 months starting from June 2016 and ending in October 2016.

What will happen to the information that is collected?

The information will help government to understand whether this way of conducting a court hearing is a good thing. It will also help identify any problems with the system.

Information for other people involved

Judges and court staff have been provided with guidance on settlement conferences. If you have any questions or would like to know more information please ask the settlement conference judge.

Screaming “Corruption” won’t address the real changes that need to be made.

This is a post by Conference on Coercive Control, an individual who wishes to remain anonymous. I am grateful for the time they have taken to write this post, in an attempt to move forward the debate about the family justice system to a more constructive arena. There are things we can do to improve matters; we should not be doomed to simply shout at each other from our different sides of the divide. Rather than continue to put the focus on a ‘corrupt’ or broken system, we need to be looking at what we could practically do, to make things better. 

It has become almost commonplace for the words “corrupt”, “secret” and “family courts” to be conjoined in a splenetic invective centring on children snatched from loving parents by conspiratorial social workers pushing a forced adoption agenda or by fathers denied their rights to see children due to alienation or contact denial. A system oft described as ‘broken’ where lawyers become rich on decisions made behind closed doors in “secret” family courts.
‘200 children cruelly lose contact with their fathers every day in secret family courts” claims a fathers rights group, whilst elsewhere, headlines talk of parents fleeing the country to escape local authorities intent on removing children. That the family justice system is callous, corrupt and broken is an oft repeated refrain in certain circles and I imagine many people throwing up their hands in despair and those about to enter the process terrified by what they are about to face.

It is not just angry parents who feel the system is failing. Professionals wade in adding fuel to an already intensely burning flame yet not everyone involved (professionals included) have the full facts to hand so the discourse quickly descends into an embittered exchange of poorly-informed rants instead of becoming a discussion on how effective changes can be made so that a system that is struggling can improve.

Don’t get me wrong. I understand anger. I also understand the mistrust of the local authority. Having been in a situation where I nearly lost my children to adoption due to a false allegation, having been involved with a person so devious, he maintained a campaign of blackmail and control for years, keeping it well below the radar to near-devastating effect and having had my mental health questioned so often even though, to this date, I have never been diagnosed with a psychiatric illness.

Yup, I know all about anger and all about professionals misreading a situation of smoke and mirrors.
But before talking further about these so- called “corrupt” family courts…

My experience of the family court system

a little bit about me…
Without delving into specifics, I have been in the family court for over 30 hearings. For about 20 of them, I did not qualify for legal aid. Although there was proof of domestic violence I did not pass the means test and so represented myself as a Litigant in Person. I can honestly say that the whole experience was one of the most traumatic of my life. It was all-consuming and for nearly 2 years it dominated my life as I learned to become a lay lawyer. Each time the postman came, I held my breath. I waited with dread for yet another court application to drop on the mat. Each time the phone rang I would freeze. Panicking if it showed a withheld number fearful of yet another fictitious allegation made to the police and designed to send me into a tailspin. To this day, I still hold my breath when the post van arrives and keep holding on whilst I walk (slooowly) to the front door. His need to keep making applications is ongoing and so I wait. Old habits die hard.

I learned to represent myself when I was still recovering from his abuse so was often prone to floods of tears. Having to manage my own case file with all the information still raw and searingly painful and against a backdrop of a pending criminal investigation was far from easy. There was literally no escape, no mental escape from the trauma, no escape from the flashbacks, the nightmares. Living on “high alert” with the constant fear that he would return to the house to break in again and this time with more than a crowbar. There was certainly no escape from the ever growing pile of paperwork that was threatening to take over the house and no escape from the reams and reams of paperwork he sent me as part of his statement with information designed to deeply humiliate me in court to deflect from what I was saying. I swear that year my stomach had taken up temporary residency near my tonsils.

I was very, very lucky in that my wonderful SOIT arranged for support to make sure I was ok and so I received extensive counselling, some weeks I had 5 hours and I needed it. It was this support that gave me the strength to carry on. It was a God-send to know that if I couldn’t cope, it was only a day or two until therapy. It helped me focus.

My biggest fear was meeting my abuser in court and not being able to control my bodily functions. I would be so tense that if my stomach lurched hard enough at the sight of him, I would have to run off to vomit or worse. There were several occasions where I incurred the wrath of the judge because I had to run off, at a moment’s notice to the loo to dry retch. I don’t think the judge ever really understood the impact of being in the same room as the man who did what he did. How could he? The man in front of him was charming and softly spoken and said all the right things. How was the judge to know that saying the right thing was easy and meaningless? Putting it into practice, not so much. To the judge, the end of the relationship signalled the end of the abuse. We needed to concentrate on contact. We needed to move forward.

I would try to keep my tears in check by clenching my teeth, aware that it would make me look stern, possibly even angry but I was scared my body would leak so my words would come out distorted in either a barely audible whisper or a robotic monotone. To stop from crying I opened my eyes wide. Thinking of it now, I possibly may have looked a little crazy but I needed to do all I could to not collapse into sobs. Either way, it contrasted greatly with his ability to talk mellifluously, even tell a small joke or two. Yes, judges need training on how people can change their persona and their demeanour. I’m sure some get it but just not enough of them do, sadly.
At some hearings I would sit stock still, not move at all, hardly breathe and just stare ahead determined not to cry even though my eyes were stinging from tears forbidden to fall.

Sometimes I could feel myself shaking from exhaustion. The few days before a hearing would play havoc with my sleep. He sometimes made a joke about me being mentally ill and paranoid and both he and the judge would laugh. I wanted to shout out, why are you falling for this act? I do not have a mental illness. Read the bundle. I wanted to scream that my perceived mental illness was a fiction to explain away the sleep deprivation from being woken up by him 4 or 5 times during the night, lack of sleep, the stress, caring for a baby. All were reasons for my sluggishness and disorientation. But for him it was convenient to say “Look at her, she can’t cope- it’s because she is mentally ill”. It was a distraction that helped to gloss over his abuse, but I stayed silent. I was too worried my stomach would let me down – or worse.

Those were my experiences. Traumatic and deeply distressing and I have heard many others say the same of their experiences. Whatever the reason for finding yourself in the family court, the experience of court is horrific but, even with the misinterpretations, lack of training, some really dubious report writing and certain conclusions that were so way out I suspected the author may have been high, I do not believe the courts are corrupt.

Family courts are not ‘corrupt’ but the Judges NEED training

What I DO believe is that many judges and magistrates are out of touch with what happens, especially where domestic violence is concerned. Their understanding of the dynamics of abuse, perpetrator tactics and victim behaviour does not reflect what happens in real life and that concerns me greatly. I especially believe there is very little understanding of the coercive and controlling behaviour that can reduce a person to a hostage in their own home but without a bruise or fracture to validate their fear. There is an urgent need for training to help identify behaviour that is invisible to the untrained eye so that outcomes reflect the actual situation and not the distorted picture that has been presented. All too often what appears to be a high conflict split has been categorised as ‘toxic’ and whereas this can be the case, often underlying coercive control has not been identified and so the abuser remains able to manipulate and control in the knowledge that it will not be seen as abuse but six of one and half a dozen of the other.

Training-Training-Training

I believe some very poor decisions are being made due to a general lack of understanding. Training should not be confined solely to Judges. Social workers, Cafcass officers, expert witnesses, lawyers as well as court staff need to be aware. There needs to be a shift from looking at isolated incidents to identifying patterns of behaviour and more training across all sectors will help to change the way domestic abuse is investigated by creating better awareness and understanding to identify and evidence abuse that hides in plain sight.

Evidence

Evidence is not always available in the form of an outright confession or CCTV footage and sometimes evidence needs to be gathered in a different way. This could apply to witnesses. Courts are hugely intimidating to most people and often court staff, lawyers and judges forget this. Courts are scary enough for the parties involved in an actual hearing but for witnesses whose only involvement is to provide information, it can be too much and so many are reluctant to go to court thus depriving someone of valuable evidence. By making the process less intimidating for someone to act as a witness, it would be a benefit especially in cases of domestic violence, abuse and child neglect, cruelty where people are reluctant to get involved for fear of getting it wrong or for fear of retribution from the party they have information on.

Court does not make people angry

I also don’t feel the court system is broken. It is in need of a systems upgrade but it is not broken. It is the people coming in to the court who are broken. Court doesn’t make people angry, the come in angry and a high stress environment will only increase the likelihood of volatility. When looking at improving the court process, it is vital that the parties themselves are not excluded. A less traumatic experience can only have long term benefits not just for the parties but also the efficient running of the court.

A Plea for Pre-Hearing Counselling

There is a duty CAFCASS officer in court on family days to help with children. I believe that Litigants in Persons should have someone there for them to help with information and for support. A Pre-Hearing Counselling Session would be a session where a counsellor or similar is on duty to help explain the court process, calculate rough timescales as to length of the matter, what to expect in a hearing, an explanation of what the judge is looking for but more importantly, that person should be a calming influence with good negotiating and people skills and able to engage with people who are emotional and agitated and put them at their ease. They will be able to, at least in part, inform, ease someone’s distress, assuage their fears as well as signpost them on to counsellors or suitable support services they may need. I believe a friendly face in court would allay a great deal of the fear, tension, distress and animosity, especially one who could say. “Look, I understand your anger but for this matter, you have to put it to one side as it won’t help you and it won’t help your child.” then get the parties to see that feelings of anger, hurt and betrayal are natural but using it as a weapon helps no one.

Post – Hearing Counselling

To help parties consolidate and come to terms with what just happened.

Vulnerable People are Easily Exploited

I have lost count of the times I have said to someone who has contacted me, if you want contact, start a dialogue but don’t expect much cooperation if you’ve put their photo on Facebook and are calling for them to be sent to prison for contact denial. In some cases, the hostility started from the word go and has escalated into an entrenched impasse but often, the hostility has come from family or friends and it has dictated the direction of the split and the injured party has been caught up in the conflict. I cannot begin to count the number of times I have heard that someone was hurt, upset and betrayed by the loss of their relationship and they did not know where to turn, who to speak to and they allowed themselves to be convinced by the anger of their friends or family or some action group and are in a situation where everyone feels personally invested. There is a role for family and friends to act as go-betweens but only if they are able to sit on the fence and remain neutral. A huge problem is that people love to feel involved, even interfere and some use the opportunity to wage war.

Many years ago, a male friend told a female friend that if the father of her children did not pay maintenance, she should stop contact. The father had been made redundant and his ex-wife was sympathetic to his plight but I could see the effect her friend’s anger was having on her and at the time I felt his involvement was unhelpful and told him. He responded in two syllables. Often litigants have no idea of the legal process and rely on false information. They are distressed, worried about legal costs, intimidated by the thought of court, suspicious of lawyers and frightened. One thing I have learnt from being with an abuser is that vulnerable people are easily exploited and this is as true of a divorcee coming across a ‘charmer’ as it is of a distraught dad coming across some of the angry and unhelpful ‘advice’ in the form of people who have had bad experiences and lash out at the system. Better signposting for available help in the form of either legal advice or therapy would be hugely beneficial and would help those in distress with no way of knowing where to go to avoid those out to exploit.

Interview your lawyer

For those lucky enough to have legal representation, lawyers can and do offer support and advice and I have known some brilliant lawyers who were able to get a client to maintain focus on a desired outcome and not go over to the Dark Side. I have also known some pretty bad lawyers who have been dismissive, have not taken the trouble to explain things adequately but continued to flummox with legal jargon leaving a client perplexed and excluded at their own hearing. Some are in desperate need of people skills and some hold deeply ingrained beliefs that are contrary to their client’s. It is important to make sure the lawyer you choose is one you can work with. Much the process will be deeply uncomfortable and distressing with sometimes very personal information being discussed so it is important to feel comfortable with the person representing you.

Make sure they ”Get It”

Most lawyers are lovely, though admittedly even the lovely ones don’t’ always understand your experiences and it is important that they do. As an example, the dynamics of domestic violence/coercive control or a deep mistrust of social services are not always understood or acknowledged. I have often heard lawyers dismiss domestic violence as a ‘legal aid matter’ and some hold the view that abuse is only serious if it has been physical. A client needs to make sure their lawyer “gets them” and understands their situation. Don’t be afraid to ask questions of them.

Reactions

Sometimes it gets forgotten that people in a state of high distress are incapable of thinking straight. It’s not that they don’t want to but the hurt, the fear, the anguish sits there and dominates proceedings and they sometimes react unexpectedly. This needs to be remembered. Court staff, lawyers, magistrates, judges need to be aware of this. People in distress don’t always react the way normally expected of them. Abusers can cry, and they do and some actually look as though they mean it. They admit their mistakes and say they have learnt but not all are sincere. Victims don’t always cry. They can come off as more aggressive that the alleged perpetrator. Some have an unfortunate nervous laugh. Often they come across as defensive and brittle. Corner a frightened animal in a cage, they don’t always cower. Adequate training for court staff, magistrates, lawyers, judges, social workers, CAFCASS should be mandatory so that in family cases, both private and public, there will be better insight Having been in hearings where it is obvious the Judge has no idea of who to believe and which direction to take, training would help to make a decision that is appropriate. I will always remember the words of a solicitor who said, of a judge who was fair. “Being fair isn’t always right”.

Self–Defeating Attitude Kills Hope

It is a huge judgement on my part, I know, but some people are just so wrong for the job. I recall a lawyer who, arms folded, towering over my seated position and glowering, hissed at me that if I did not agree to her client’s demands, there would be hearing upon hearing upon hearing until I had no money. She advertised herself as a domestic abuse lawyer and she was representing my abuser. I have to say, I was terrified. Not just by what she said but by her aggressive stance and intimidating body language. There should be no place for bullies in a domestic abuse situation. I have met many people who, at the start of their career, would have had a passion for their work, be it law, statutory services, the volunteer sector but somewhere along the line they have become despondent, disillusioned, bitter, resentful, have given up but not yet left the building. If you are an employer and looking for change, for progress, you need to have people who believe it can happen. Nothing will change if the prevailing view is “What’s the point, nothing will happen, why bother, nobody listens, nothing ever changes” Negative thinking and a self-defeating attitude will 100% guarantee that nothing gets done and, in the case of domestic violence, when you are advising a victim of abuse that there is a way out, there is a chance to start again, you’re not trapped. How will a victim believe that, if they know you don’t? If you no longer believe in what you do, it’s time to get out.

Practical Changes

There are some changes that could be made fairly easily and which would create a less cumbersome system which could potentially go some way towards creating a better experience. One of them is staggered arrival times. I speak for myself and others when they describe the terror of arriving in court with the possibility that they may bump into their ex with a possible entourage. I have been known to hide in bushes because of queues for the security check and I did not want to risk my abuser walking up behind me. I have also known an abuser bring his extended family to wait for him before the court opened. His ex had to force herself to walk past the sneering and name calling. Maybe staggered arrival times aren’t always practical, maybe some courts could put in place separate entrances for applicants and respondents. It seems extravagant to give each a private meeting room and this could be a simple way of reducing the likelihood of an unwanted encounter.

In cases where there is domestic violence where victims of abuse act in person, a coding system could be arranged whereby on arrival, the victim could show a discrete badge or ticket and the security guard could accompany them to a separate waiting room without a huge disruption. Court staff could then inform their arrival to the Usher. It is very common that abusers will chose to sit either right by the Usher, the door to the loo or the water cooler. I have known some that will happily switch between all three, knowing that every time they move position, it creates distress. I have heard many stories of victims transfixed to their seat and unable to go to the loo or the water cooler and have often gone into a hearing parched and bursting for the loo. I feel that often court staff do not get it. An innocent gesture of the perpetrator opening the door for the victim and accidentally brushing their hand is enough to intimidate a victim into silence yet looks harmless to the untrained eye. Keeping applicants and respondents apart would minimise much of the subtle ‘below the radar’ forms of intimidation seen in coercive control.

Maybe creating separate waiting rooms is not feasible so maybe screens could be put up to give at least some semblance of protection from intimidating stares although diehard intimidators will use heavy sighs, coughs and annoying finger clicking to announce their presence, the main purpose of which is to signal “ Yoo hoo, I’m here and I know you can hear me”.

Court staff should be made aware of subtle forms of intimidation so they can report it to the judge. I remember a hearing where the abuser was accompanied by a Mackenzie friend with an exceptionally loud booming voice. Whilst waiting to be called into the hearing, the MKF would stand by the victim and have a conversation, very loudly, in Italian (which I suspect only she and the MKF spoke). The conversation was less than polite about her but how do you prove it? Luckily, he was so loud, the usher asked him to continue out in the stairwell whereupon he stood just outside the ladies lavatory. Classic intimidation but who would have recognised it?
Someone else told me that their abuser would delicately run his index finger down his face, it was a code to her to say he would cut her face. To everyone else it looked like he was brushing off a stray hair. Training and observation. Much better training. That is what is needed.

Feeding the meter

Parking for court hearings is another thorny subject. It never fails to amaze me that conference halls can organise tickets for all day parking yet with hearings, lawyers and their clients often have to dash out to feed a meter which, at an all-day hearing, is not only distracting but adds to the stress levels already at play. I fail to see the difficulty in a system whereby a person due in court can purchase a half day/full day parking permit online when they are listed for a hearing.

Listings

I fail to see the reasoning behind listing a hearing for 10 am and then having to hang around all day waiting to go into court. I understand the bit about not wasting the judge’s time but, in light of legal aid cuts, all this hanging around must be a huge drain on the public purse.

Court Security

I can laugh about it now but I remember the time I arrived at the court with an urgent ex parte application for an occupation order. I arrived and asked the security guard where I could deliver it only for him to shout, “Why are you coming here with an occupation order? We’re not the bloody job centre, you know!”

Finally
In conclusion, some suggestions I would have welcomed as a LiP which would have made the whole process a little less distressing but, if I am completely honest, I would have put up with a hearing in a barn with a mouldy squat loo if it meant the judges, lawyers, court staff et al had received comprehensive training in identifying below the radar non-physical abuse.

Now there’s a thought.

The woeful state of our debate Part 8: Men vs women

This is a post by Sarah Phillimore

As someone who spends a great deal of time complaining (legitimately) at the simply woeful state of our national debate about the family justice system in general and proceedings involving children in particular, I accept that it is incumbent on me to put my money where my mouth is particularly when I appear to have caused annoyance with some sound bite response.

https://twitter.com/FamilyLawD/status/736864181828325376

I invited Jeff Botterill to write a guest post for this site to which I could respond at greater and more nuanced length, but it does not seem that Jeff wishes to take up that opportunity, so I will hopefully start the ball rolling with this.

Jeff asked me to consider some articles, via a series of tweets.

One was from the Telegraph in 2009 which stated that children in a third of family break ups lose contact with their fathers due to ‘failing court system’.  Another from the Telegraph in 2008 which stated that ‘fathers were powerless against vengeful mothers’. And finally an article from the Guardian in 2004  which stated that Munby J (as he then was) launched an ‘extra-ordinary attack’ on the family court system for ‘failing fathers’.

So what is my response to this?

First: these articles range from 2004-2009. Already that puts the debate on the back foot. A lot has happened in the family justice system since 2009 (some of it good, some much less good). I am not really interested in arguing about what things were like 7 or even 12 years ago – I would like to focus on the situation as it is now.

I would like to know what Jeff’s response is to the rather more recent research in 2015 that found that courts did not discriminate against fathers. However, I clearly can’t ignore the fact that these articles struck a chord with Jeff, and presumably would continue to strike a chord today with many others who represent fathers or fathers’ rights groups. So lets look at what they say.

The Telegraph article from 2009 states:

A quarter of the children said that they had been asked to lie to one parent by the other and 15 per cent said they had even been called on to “spy” for their mother or father.
Meanwhile half of parents polled admitted deliberately drawing out the legal process for maximum benefit and more than two thirds conceded that they had used their children as “bargaining tools”.

This article gains a little more ‘oomph’ than I would normally expect from something in the Telegraph because it quotes an actual lawyer who says:

“The adversarial nature of the system invites people to come and use the courts system as a punch up and the children get used as pawns,” said Sandra Davis, head of family law at Mishcon de Reya, for whom the poll was conducted.
“It polarises parents and it puts children in the middle of the antagonism.
“Some fathers back off because it is too painful to carry on litigating, they give up.”

But this is the problem. I simply don’t accept that it is the court system that makes bitter, angry people bitter and angry.  I don’t accept that it is the court system that makes parents use their children as pawns in their horrible battles against one another. I don’t accept it because it is emphatically not what I have witnessed over 17 years.

As Julie Doughty said:

Of course – the court system will certainly NOT help make people less angry or less bitter. Court is absolutely the last place angry bitter people need to be. But it isn’t the court causing this problem. It is simply that the court can’t really do anything about it. That isn’t a question of ‘fault’ – its a recognition of reality.

My very clear view, based on now nearly 17 years working in the family courts in both private and public law proceedings is that the law is a very blunt instrument for dealing with the misery and pain that comes from the toxic unravelling of a relationship; particularly when there are children involved – the ultimate hostages to fortune. It isn’t possible to simply imprison hostile mothers who are the primary carers of young children. What is the likely impact of that on the child? Fines have limited impact if someone has no money. The court has very few weapons in its arsenal to make the unreasonable, reasonable.

I have considered the law about intractable contact disputes in another post. It is clear that the senior courts agree with me – being a parent is a responsibility. Bringing another life into this world is a very serious thing and one that should not be considered lightly or frivolously. Because when it goes wrong, the shock and emotional fall out is considerable for everyone involved. 

What the more extreme fathers’ rights groups such as Fathers 4 Justice seem to want us to accept is that all their members were just so terribly unlucky – to trip over and find themselves accidentally impregnating some awful woman who went on to make their lives a misery and thwart their relationship with their children. Presumably the reality is more likely to be that at some point, these men and these women met, formed a relationship, had consensual sex and decided to bring a child into the world. If they made this decision without really taking the time to get to know each other and to make sure that they at least liked and respected each other enough to co-parent well, then I am afraid it is their fault when things go wrong down the line and they find they lack the tools to communicate with or understand one another.

Maybe that sounds a bit harsh. Maybe love – or lust – is blind. But the one thing they cannot blame for their inability to communicate reasonably or respectfully, is the court system.

I am quite clear that behaving badly in court is not the sole province of either the male or the female. Both can and do behave very badly and their children suffer for it. For every article decrying the system failing fathers, there will be reports from other pressure groups saying it fails mothers by being far too soft on violent men. See for example the 19 Child Homicides Report from Women’s Aid.

So much of this debate is woeful because it is turned into a ‘them’ versus ‘us’ debate; the Evil Feminazis against the Violent Abusive Absent Fathers. Lucy Reed discusses this clearly in her blog post – Talking AT and OVER not TO and WITH – and I endorse all that she says.

What both ends of the polarised extreme can agree on however is that the court is to blame whenever something goes wrong. And I reject that, and will continue to reject it as a clear example of attempt to deflect responsibility to some external agency.

There is real debate here about what we need to do to stop the problem arising in the first place – better sex/relationship education at school? –  and to provide better mechanisms for dispute resolution – more access to counselling/therapy?

But we won’t be having that debate when all happens is two opposing camps shouting at each other across an abyss. I accept that my experience is just that – my experience. Others may have different experiences. But equally, it is not reasonable to expect me simply to abandon my experiences on the back of some news paper articles now many years old.

But if I am wrong, if I have missed some fundamental point, I hope Jeff will reconsider and provide a response to this. What we need to do is think about how to make a bad situation better and encourage dialogue between all those on whom the family justice system has an impact – which is pretty much everyone.

EDIT 30th May

My fault for not being sufficiently clear. I am of course talking about disputes between parents where there have been no findings made against either of them. I am emphatically NOT talking about cases where there is clear, proven reasons for one parent to be very wary of the other – for example because of violence or false allegations made by one against the other. 

I don’t think the courts are as bad as some claim at recognising the seriousness of domestic violence but I understand and appreciate that many disagree with me. For what it’s worth, my comment on the problem is that this prevailing culture of telling victims ‘we believe you’ is all well and good but it leads to some nasty shocks when actually in a court room setting where a Judge is not saying ‘I believe you’ but rather ‘show me the evidence’. And I accept it is often very difficult to ‘prove’ in a family court historical allegations for which there is no supporting evidence, such as police or doctors’ reports. People in relationships with violent and abusive people need help and support to get out as quickly as possible and to make sure their concerns about the other’s behaviour are reported to other agencies and well documented. 

The woeful state of our debate about the family courts Part VII: Barbara Hewson

This is a post by Sarah Phillimore

The fact that this is number seven in a series of posts about the dangerous debasement of public discussion about the family justice system and issues of child protection, should be a clue that I think we are in a very parlous state indeed.

What makes this particular post different from the other six however is the response of the author whose views I criticised – Barbara Hewson. That response – in the space of about 12 hours – was to make a complaint to my Chambers, threaten to complain about me to the Bar Standards Board and send me numerous aggressive tweets in the small hours of Friday morning.

EDIT 30th May  – apparently Ms Hewson is now contemplating action for defamation and has requested that anyone who retweeted this post ‘unretweet it’. Given that my explicit assertion – she talks dangerous nonsense – is true in my honest opinion, it will not be merely my duty but my pleasure to defend this post in open court.

This is worrying on a number of levels, not simply because Ms Hewson feels it is appropriate to deal with dissent in such an aggressive way, all the while proclaiming her status as ‘victim’ in the face of my vicious harassment i.e. my refusal to accept everything she said as true. The delicious irony of that will not be lost on anyone familiar with Ms Hewson’s work in debunking false allegations of sexual abuse and pouring scorn on those who would play the ‘victim card’.

But it is more worrying than simply being annoying for me, because it confirms and underscores what I have long suspected – those with the loudest voices in the ‘debate’ about the Evil Secret Corrupt Family Court have no real interest in promoting reform and change. They gain their validation and some excitement from being those who ‘expose’ the corruption and who ‘speak truth to power’. To sit down and calmly discuss what we could actually do to make the system work better is of no interest to them at all – because its not remotely sexy or exciting, just extremely necessary.

The family courts make a mockery of justice?

Anyway. Assuming my website isn’t suddenly taken down after further complaints from Ms Hewson, here is my discussion of her recent post ‘the family courts make a mockery of justice’  which appeared in Spiked On-line on May 25th 2016.

We are off to a blistering start in the first paragraph:

The UK Department for Education last week published research into rates of reporting child abuse. Feminists claimed that the fact that a third of those interviewed said they would not report suspicions of abuse amounted to ‘victim-blaming’.

The Department of Education does NOT cover the ‘UK’ and Ms Hewson is unable to identify the myraid ‘feminists’ who spoke of victim blaming but it seems that she is actually referring to Isabelle Trowler – who may well be a feminist (I have no idea and can’t see the relevance either way) but who is more usefully identified as the Chief Social Worker for England.

Maybe it gets better. Let’s read on.

A ruling from the Court of Appeal on 19 May in a family case shows just how skewed the system has become when dealing with accusations of abuse. The case is called Re E (a child) and it makes depressing reading.

First lets be clear. She is absolutely right that E (A Child) [2016] EWCA Civ 473 makes for extremely depressing reading. There is no doubt that the case was extremely poorly managed and crucial principles ignored or misunderstood. The police interviews of the children were badly handled and the court did not give sufficient thought to whether or not the children should be cross examined. The allegations of abuse they had made and which were found proved at first instance were overturned by the Court of Appeal.

The reasons for the appeal succeeding were summarised at para 98 of the judgment:

  • The judgment wholly fails to acknowledge and then analyse the numerous and substantial deviations from good or acceptable practice which are evident at every stage of the police interaction with the three complainant children, both during the ABE interviews and by undertaking the ‘fast-track’ interviews thereafter.
  • The application for the police officer to be called to give oral evidence should not have been refused (unless, on investigation, it was impossible to call the officer at any stage and on any basis during the hearing).
  • The judge’s analysis of the children’s evidence is open to the valid criticisms made in support of the appeal. In particular the judge’s approach to, and use of, the inconsistencies within the evidence of the three children fell well short of what was required.
  • The judicial analysis of the formal and properly presented Re W application made by the appellant was so wholly inadequate and, in effect, simply was not undertaken. This, of itself, is an error of sufficient materiality to justify setting the fact finding decision aside.
  • A’s right under ECHR, Article 6 to a fair trial and his right to the protection of legal professional privilege were breached to a substantial degree.
  • The judge’s analysis of the evidence of what A had said, together with his presentation, when being invited to address sexual matters was both confused and inadequate. There is a real risk that every aspect of what is recorded by the social worker, guardian and key worker in October, November and December 2015 relates entirely to his complaint of abuse by two uncles five years earlier. The potential for that to be the case was not taken into account by the judge and, in any event, the judge wrongly conflated evidence about that past abuse with the entirely separate recent allegations at a number of stages in her judgment.

So no doubt that case was FUBAR. I have written myself about other instances of similar woeful failings. It’s not – sadly – a unique case.

But is Ms Hewson right to extrapolate from that and conclude that because one case was royally screwed, the entire system must therefore be rotten and that family courts routinely pay no regard to the law? She says 

This approach ignored a Supreme Court ruling from 2010, Re W, where the Supreme Court said that the question of whether a child should give evidence should be approached on a case-by-case basis. A blanket prohibition on children giving evidence was incompatible with the right to a fair trial. Baroness Hale stressed that focused questions, which put forward a different explanation for certain events, ‘may help the court to do justice between the parties’. That ruling went unheeded by the family courts.

This is remarkable, suggesting that the family courts operate a separate system of legal rules unaffected by fundamental legal principles, such as the right to a fair trial and the supremacy of judgements of the Supreme Court (the doctrine of legal precedent). It is perhaps not surprising that many ordinary people view the family courts as inherently unfair.

It was gently suggested to Ms Hewson on Twitter by those of us who do have experience in the family courts and are able to point to examples of good practice, that it is just not true to say that the entire family court system simply turns it back on the Supreme Court and ignores legal principles wholesale.

Ms Hewson’s response was to rely upon her 12 years of experience (which later expanded to 31 years) as all the evidence she needed that the system was rotten to the core and the fault was the ‘corruption and collusion’ of family lawyers.

This is clearly nonsense. As Napoleon said – never attribute to malice what can be explained by incompetence. That some cases go wrong does not mean one is entitled to conclude that the entire system is rotten and all the lawyers in it just collusive stooges.

And this nonsense matters, not merely because it is a barrister saying it. This nonsense takes root, infects people’s ability to understand and engage with the court process and provides a vicious cycle of withdrawal, lack of trust and disastrous consequences for the proper management of family cases.

This whole episode has been sad for me. I did at one time admire Ms Hewson, I thought her often brave and funny. She has said things that needed to be said. She is right to be wholly critical of what went wrong in the case of E (A Child). But her reaction to even the gentlest of criticism has demonstrated again and horribly clearly just how debased our current discussion about the family justice system really is.

And if she wants to keep on tweeting me in the early hours of the morning, she needs to realise that I also know how to take a screen shot.