Author Archives: Sarah Phillimore

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 ju*****@************ac.uk. 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 nu*******@************ac.uk

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.

Adoption – A vision for Change? The Response from Nagalro

The Response from Nagalro in response to the policy paper Adoption: A vision for change (Department of Education, March 2016)

11 May 2016

This is an open response from Nagalro, produced here with permission, thanks and total agreement – Sarah Phillimore.

We are concerned that despite the intention to ‘strengthen families’, no more is said on this point and that there is no discussion of support for disadvantaged families despite the worrying increase in the numbers of children subject to care proceedings.

Introduction

1. Nagalro is the professional association for children’s guardians, family court advisors and independent social workers. All our full members are registered as social workers currently working with children and families.

2. We have a significant number of members who have worked directly in the field of adoption, both as social workers and managers, some of whom have been involved continuously with this work for over thirty years and a few for over forty years. These practitioners have extensive experience of preparing and assessing prospective adoptive parents, of life story work and preparing children for placement, in placing and supporting adopted children and their adoptive parents, and in providing counselling to adopted adults seeking information about their history and origin. Thus, collectively, we can draw on a wide experience of adoption work and have a broad perspective on how adoption has developed as a beneficial service to children over the years.

3. We are fully aware from our experience that adoption has offered, and continues to offer, some children a most valuable solution when ‘nothing else will do’ – that is, where there is no viable alternative family placement available to meet their needs. We note the Policy Paper does not address how to prevent children entering the care and adoption systems in the first place.

4. Whilst formal responses have not been sought by the DoE, we consider this Policy Paper is so important and signals such a radical change in the adoption process, not least because it states ‘we are determined to redesign the whole adoption system’, that it is incumbent upon us to comment both to offer encouragement and caution.

5. We are of the view that, like the curate’s egg, the proposals are good and bad in parts. We are concerned that despite the intention to ‘strengthen families’, no more is said on this point and that there is no discussion of support for disadvantaged families despite the worrying increase in the numbers of children subject to care proceedings. The scale of reduced spending on early intervention in children’s services and the way this leads to greater costs elsewhere is well analysed in ‘Cuts that Cost’ (2015) produced jointly by the National Children’s Bureau and Children’s Society. Another excellent analysis of how funds could be better used is ’Spending on Late Intervention – How we can do better for less’ (2015) produced by the Early Intervention Foundation. The key point made by both of these publications is that by significantly reducing early preventive work, more public money has to be spent on costly proceedings, foster care, mental health provision, adoption agencies and so forth, which potentially could be avoided by better focused spending at an earlier stage.
6. We welcome the practical proposals once a Court decision has been made that a placement order and adoption is in the best interests of a child. The proposed structural and management changes, supported by increased funding to streamline the process of speedy placement and effective post placement support, are helpful and we are committed to working with the new agencies to maximise the benefits for children with an adoption plan. We are, however, concerned by the underlying tone of the document

7. We are concerned that special guardianship and family placements appear to be viewed as in some way inferior to adoption as a permanency option. We have some suggestions with regard to how the proposed improvements in the adoption process could be expanded to incorporate making the best permanency assessment for children to achieve the best outcome if they cannot be cared for by their parents.

8. We set out below our concerns with regard to the apparent prioritising of adoption as a solution for children for whom the threshold test of the CA 1989 has been passed and who cannot return home and also our suggestions regarding the future of the adoption service under the proposed new regional arrangements.

The role of research and use of statistics

9. There has been very little useful research in the field of adoption over the years – perhaps due to the long term factors involved, the parameters to be measured and, when comparing with other ’permanence’ options, the problem of comparing like with like. It is acknowledged, as noted in the recent research by Selwyn et al at Bristol University, that the consensus of the limited research done to date suggests that compared with less permanent options (such as residential care, fostering and residence) adoption breakdown rates are lower (3-8%), and also that they are proportionally higher the greater the age of the child at placement. If adoption, as suggested in Policy Paper, is to become a ‘preferred option’ in child care planning it is imperative that both longitudinal research on outcomes and comparative research with other options, such as permanence through special guardianship is commissioned to ensure fair comparisons are made.

10. Recent research that has been done, including that referred to above, has looked at stability of placement during minority. We believe that research should go much further and address the experience of adults at various stages in the life cycle using the factors identified in the 1990s by Professor June Thoburn at the University of East Anglia, namely the ‘twin pillars’ of a sense of stability, legal security and permanence as well as, importantly, a sense of identity in order to provide a balanced picture. We know little of how adopted people, who have maintained stable relationships with their adopters, have felt about the experience and the impact upon their mental health. We have anecdotal evidence, but no research, that many feel ‘different’ and this has had a varying impact on success and fulfilment in adult life. The research on contact and open adoption is also very limited and on such a small a scale as to lack cogency.

11. Longitudinal studies, however useful, will also present risks of misinterpretation due to demographic changes over time as the population of children and prospective adopters in the 1950s and 1960s is very different from now. Then a relatively healthy group of unmarried mothers from a wide range of social backgrounds, gave up their babies due to societal pressure to a relatively young group of adopters for whom there were few fertility treatments available. The experience of this group, some of whom are the current policy and decision makers, cannot be directly extrapolated without allowing for a changing context.

12. The current situation is very different for three principal reasons: Firstly, many of the children now available for adoption come from backgrounds where the ’toxic trio’ of mental health (including learning difficulties), substance abuse and domestic violence are present. We are only just beginning to recognise the ‘iceberg’ of foetal alcohol syndrome and its effects, evident only with hindsight and from the accounts of adopters of young adults, many of whom feel they were not advised at the time of placement regarding all the issues in their child’s background and who have struggled with inadequate support over many years. Adoption is certainly not an endeavour for the faint hearted!

13. Secondly, there is reduced availability of suitable prospective adopters due to other options now more widely available, such as surrogacy and egg/sperm donation to assist people unable to have children naturally. Further, many of the current population of prospective adopters are older and some have suffered the severe emotional stress of a number of cycles of IVF and complex fertility treatment.

14. Thirdly, there continues to be a mismatch between the children needing homes (older children and sibling groups), compared with the aspirations of most adopters for younger children. The speeding up or even streamlining of the adoption process is unlikely to redress this imbalance. Aspirations need to be realistic otherwise all involved with the adoption/permanency process risk carrying an unreasonable sense of failure. These are all factors, which in our view, require much closer examination. The recent research of Selwyn et al notes the significant levels of stress and depression experienced by adopters and, by inference, the importance of resilience in coping with a much more damaged cohort of children, all of which also requires closer examination.

15. There is also the issue of fairly comparing like with like. The Policy Paper curiously, does not mention the outcome noted by Selwyn et al for special guardianship although it does for residence orders. However, the two are not comparable as unlike special guardianship, residence is not a permanence option.

16. At the time of Selwyn’s research it was found that more special guardianship than adoption placements broke down in the early stages. It should be noted that this was in the context of pressure from the court process to assess relatives within 26 weeks and the reluctance of both courts and local authorities to ‘test out’ special guardianship placements in comparison with adoption, whereas the interval for adopters from initial application to placement is usually much longer.

17. Further, adopters are usually assessed and prepared by dedicated teams of adoption specialists with a high level of skill and expertise compared to the far less coherent process experienced by most prospective special guardians whose assessments are generally squeezed into other functions such as fostering or left to a social worker to do as a low priority amid other pressures or by a range of independent social workers, all of which results in a process of very inconsistent quality. Adoption and special guardianship cannot be compared regarding outcome until there is a level playing field. There appears, as a result of the poorer service received by special guardians, to be a suspicion by policy makers of special guardianship as an effective placement outcome leading, presumably, to the current emphasis on adoption.

The role of adoption in children’s permanency decision making

18. Unlike an earlier Government document ‘Adoption: The Future’ (November 1993) there is no recognition in the Policy Paper of the draconian nature of adoption against the wishes of parents, or that adoption severs the legal relation between a child and their birth parents and family. This was acknowledged in the 1993 document in the following terms: ‘In domestic adoptions the balance between the rights and interests of the child, his adoptive parents and his birth parents will be defined afresh. In particular there will be …. recognition that the permanent legal severance of the relationship between child and birth parents should be justified by clear and significant advantage to the child compared with less permanent options’

19. The basis of the careful crafting of CA 1989 was to provide support for parents to care adequately for their children and for the state to intervene by an application for a care order, where the threshold for making such an order must be proved. If amendments are to be made to CA 1989, it could be possible for parents seeking a s.20 placement may to find themselves in a position whereby a local authority could make a ‘foster to adopt’ placement and the carers/potential adopters may gain legal rights never initially intended. Furthermore it could, in effect, be the regressive step of a return to s.2 CA 1948 when local authorities by a committee decision could assume parental rights and responsibilities for a child without any due process of law.

20. Whilst most European states have a process for permitting adoption without parental consent, in her study of adoption law and practice in England and Wales for the European Parliament (2015), Dr Fenton-Glynn comments: ‘it must be acknowledged that few – if any – States exercise this power to the extent to which the English courts do’ (page 27). In her recommendations to the UK Government, Dr Fenton-Glynn states: ‘The complete severance of all legal and social ties between a child and their birth family should only be considered in the most severe and exceptional circumstances, which are not necessarily present in all cases where a child cannot return to their birth family’ (page 46). This recommendation appears not to have been heeded in this DoE Policy Paper.

21. When our closest neighbours are so reluctant to take such a draconian step with their own children, surely we should exercise caution in our use of what some would call ‘forced adoption’. It was, after all, not so long ago that the UK was transporting children to Canada and Australia, a piece of social policy that is now perceived as quite morally wrong and misguided despite its justification at the time as being in the best interests of children and enjoying the support and management by such respected voluntary agencies as Barnardos.

22. We are concerned that any envisaged changes to the CA 1989 may be the thin end of the wedge and depart from the principles enshrined in the Act that if a child cannot live with a parent then consideration of a family placement must be made and that adoption should only be the choice when ’nothing else will do’, a situation which reflects European jurisprudence.

23. Prior to Re B and Re B-S, it was the experience of some of our members that some local authorities took a somewhat cavalier approach to assessing family members who, having no legal status in care proceedings or basis to participate unless viewed favourably by the Guardian, had difficulty in challenging care plans. There was a tendency for local authorities to choose adoption as both a simpler and also expedient option to a kinship placement, with all the attendant complications of assessing and supporting family members. It is conceivable that the drop in adoption figures after these two judgments, far from presenting a cause for concern as suggested in this Policy Paper, in fact showed that more appropriate and legally correct decisions were being made by local authorities upon being reminded by these judgments of their proper duty to assess family members adequately.

24. There are many children in England and Wales who would have better life chances if removed from both parents and family members and placed with people assessed as suitable to adopt. However, this would be social engineering and the danger of this has been noted in various judgments, even prior to the CA 1989. For example, Lord Templeman put it this way in Re KD (1988): ‘The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child’s moral and physical health are not endangered. Public authorities cannot improve on nature”. This is a normative statement, such that whilst Local Authorities could improve on nature, they have no right to do so other than in very exceptional circumstances.

25. It can be argued that the same point applies equally to family members, particularly where the child has a close, pre-existing relationship and a secure attachment. This point has been made by inference in many subsequent cases as Wall LJ in Re L (2006) pointed out: ‘’There are many statements in the law reports warning of the dangers of social engineering”. He cites Butler- Sloss LJ in Re O (1992): “If it were a choice of balancing the known deficits of every parent with some added problems that this father has, against perfect adopters, in a very large number of cases, children would immediately move out of the family circle and towards adopters. That would be social engineering”. It is noteworthy that she mentions the ‘family circle’, which seems to imply that caution must be exercised not only in choosing adopters over parents, but also over family members.

26. Hedley J reiterated the point in Re l (2007), where he specifically states: “Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent”. He notes that “very unequal consequences”’ will flow from children’s differing experiences and states explicitly “it is not the provenance of the State to spare children all the consequences of defective parenting”. He goes on to say that to justify removal “there must be something unusual; at least something more than commonplace human failure or inadequacy”. The original CA 1989 Guidance and Regulations is helpful in stating that such harm as to reach the threshold should be “considerable, noteworthy or important” (Vol 1, 3.19). It is not sufficient that a child would be better off in another family. This is the very reason for the threshold and in our view the same high test should be applied when considering placement with family members, particularly where there is a pre-existing positive relationship.

27. We would wish to caution that by unreasonably raising the yardstick for kinship carers versus adopters, the risks outlined in these cases may arise. We agree that the additional criteria added to the special guardian assessment schedule are appropriate and concur with the comments made by John Simmonds of CoramBAAF in his article in Community Care entitled ’Special guardianship reforms do not address time pressures facing Social Workers’ (24.02.16). We believe that to achieve balanced, comprehensive and accurate assessments of prospective kinship carers they must be afforded the same quality of assessment as prospective adopters.

28. We believe the proposal to establish regional adoption agencies (RAAs) as set out in this Policy Paper, offer an opportunity to bring together all the expertise needed to make the best permanence assessments and that decisions for children and should include not only adopters but potential kinship carers. Thus, rather than calling these new agencies regional adoption agencies a better title to reflect the functions that should properly be included would be ‘Regional Permanence Teams/Agencies’. This is a proposal also suggested by TACT.

29. Any assessment relating to permanency decisions for children should take into account, and give proportionate and appropriate weight to the child’s existing secure attachments. Inevitably there are some children subject to placement orders in foster care awaiting a suitable adoption match who, during the time waiting, establish such a secure attachment to their foster carers that removal to unrelated adopters is clearly not in their interests. It is our experience that foster carers wishing to adopt in such cases rarely receive support from their local authorities in the first instance. This seems to stem from financial reasons because foster carers typically are unable to afford to adopt unless they continue to receive financial help. Local Authorities (LAs) are also reluctant to lose foster carers who provide a skilled, expensively trained, resource and this results in either the child continuing to live with a sense of impermanence and fear of removal as a ‘looked after child’ or, in some cases, a stressful, not infrequently bitter, stand-off results between carers and their local authority (in one case a judge threatened to give judgment in open court with media present to shame a local authority to provide financial support). None of these experiences are conducive to the welfare of a child and we hope that the new RAAs will have the means, either directly or via their constituent local authorities, to enable a smoother transition from foster placement to adoption for this significant minority of children. Children adopted by foster carers sometimes also have the additional benefit of established contact arrangements with their birth family with which their carers feel comfortable, unlike most unrelated adopters. This provides the duel benefit of legal security and identity as described by June Thoburn.

30. We were surprised to read in the research quoted, albeit limited, that the stability rates for foster carer adoptions were no better despite the advantages of having no disruption in placement and contact. We postulate that in such cases an undermining factor has been the usually protracted and contentious nature of the adoption process as described here, which has been a barrier to children achieving a sense of permanence as soon as possible. We welcome any support, which the RAAs can offer in streamlining and speeding this process for this group of children.

The role of the Regional Adoption Agency

31. Nagalro broadly welcomes any restructuring of the adoption process which enables economies of scale in developing the range of skills and services needed in the assessment, approval and support of prospective permanent carers, and also the assessment, preparation and support of children in need of permanency. We believe that as stated in the Policy Paper, this provides an exciting potential for the wider use of innovative and child centred strategies such as life appreciation days. We acknowledge that much innovative work has come from the voluntary adoption agencies, but not exclusively and are concerned that the tone of the Policy Paper, with little evidence, suggests that the private and voluntary approach as opposed to the public and ‘bureaucratic’ is always best. We are concerned about this and would caution against a cavalier approach to decision making, riding rough shod over the regulations, in the drive to remove bureaucratic constraints. We would also caution against removing a corporate approach, such as the use of panels, from the decision making process as this would lose the very wide range of expertise and knowledge which is brought to bear when life changing decisions are being made for children.

32. We would appreciate much greater clarification as to what is envisaged regarding the relationship between RAAs and the LAs holding parental responsibility for children. It is unclear whether parental responsibility will be devolved to the RAAs or whether it will remain with the individual local authority. If it remains with the LA, any decision on ‘matching’ a child to adopters will remain only a ‘recommendation’ for the LA’s decision maker. Much greater clarification of the legal and governance relationship between RAAs and the LA with responsibility for the child and the LA where the placement is to be made, is needed.

33. We acknowledge that some small LAs have had particular difficulties in providing the whole range of services from their own resources, although some, such as in London and elsewhere, have already recognised their limitations and set up consortia arrangements prior to the RAAs initiative.

34. We wonder how performance indicators will be set for the new LAAs as it seems that any increase in adoption figures is perceived as ‘a good thing’ and any reduction ‘a bad thing’, which may not reflect whether the right permanence decision has been made for each child and put into effect in a timely way. Dr Fenton-Glynne in a further article in Family Law (February 2016) warns how the imposition of “adoption score cards” and similar data can result in a distortion of professional activity to “meet the target” rather than effect the best outcome for each child. We strongly warn against an approach where an increase in special guardianship orders and decrease in adoption orders will negatively impact upon the evaluation of the performance of RAAs and LAs.

35. We strongly encourage proposals in the paper regarding increasing the amount and quality of adoption support, but urge that this support should be extended to include special guardianship. Social workers in this field have long been aware of the vulnerability of adopted teenagers who have been disproportionately represented in Child Guidance/CAMHS clinics for many years and welcome targeted support for this group of adopters and children. Dr Selwyn notes this in her research and makes recommendations for a wide range of support that needs to be made available.

36. We are concerned that sufficient funding will be available and note that the Adoption Support Fund was given an initial budget of £19 million pounds, £16 million of which was spent in the first 6 months. This suggests that at least £32 million will be necessary in the first year, and this is without taking into account any increase in numbers that this Policy Paper encourages and anticipates. It would be unfortunate if demand outstrips supply and many adopters, having been rushed into adoption, are left feeling let down.

37. We welcome proposals to develop the work force such that RAAs should become a ‘centre of excellence’ and repository of skills in preparing children for placement and assessment of all prospective permanent carers, both related and unrelated. These skills should be available for assessment at both the pre-proceedings stage and during proceedings, not exclusively post proceedings. Without this, there is the significant danger of adopters receiving a superior service to prospective kinship carers and special guardians thus replicating, in our view, the current unsatisfactory situation. The establishment of Regional Permanency Agencies offers a real opportunity to establish a fair system and level playing field for all prospective permanent carers and we hope the opportunity will be grasped.

38. We also welcome the potential that exists for the new regional agencies in concert to become what might be described as a ‘research hub’, where a variety of data can be systematically collected which could include longitudinal and comparative studies of various forms of permanency placement. More information is needed too about the impact of ‘open adoption’ and other arrangements where contact continues with birth parents.

Amendments to legislation

39. Page 23 of the Policy Paper sets out the intended amendments to the CA 1989 whereby when considering the appropriate final order/care plan, the court will have to consider whether the different proposed placements will be sufficient to meet the child’s needs, including any increased needs which they may have arising from any previous mistreatment, and whether this level of care will continue until the child is aged 18 years. This provision appears to be an attempt to restrict family placements and the making of special guardianship orders when, in our view, the proper test for a child with a pre-existing relationship should be the ‘threshold’ test with all the attendant caveats against ‘social engineering’ as outlined above so clearly by a series of judgments from eminent judges and confirmed by Re B-S. In our submission the relatively poorer outcomes in respect of the stability of special guardianship placements arises for the most part from the haste which was imposed by the 26 week limit and the inconsistent quality and process of assessment by LAs of prospective special guardians compared with the more rigorous and consistent assessment process used for prospective adopters. We accept, as proposed by John Simmonds, that the process for assessment of kinship carers should be more rigorous and are of the view that the amendments to the Special Guardian Regulations (29.02.16) sufficiently address that need.

Conclusions and recommendations

40. We welcome the establishment of regional agencies as centres of excellence and repositories of skills to address the need to improve the speed and effectiveness of placing children with their best permanence option but believe that, most importantly, their remit should include assessment of potential kinship carers and special guardians.

41. We suggest that such agencies be called Regional Permanence Agencies rather than Regional Adoption Agencies.

42. We suggest that the skills and resources of these agencies are available at all stages from pre-proceedings to placement in order to provide a level playing field and best evidence for the family court.

43. We recommend that social workers in these new agencies should have responsibility for assessing both prospective adopters and kinship carers as this will enable them to develop a broad range of experience and depth of understanding of the strengths and limitations presented by both categories of permanent care. Such will, it is hoped, enable practitioners to develop a balanced child-centred, professional understanding independent of any particular external influence or prevailing philosophy.

44. We strongly warn against an ‘evangelical approach’ to adoption, whereby it is perceived as a good in itself. This perception is contrary to the majority view of European and western thought and jurisprudence, and it fails to appreciate it represents a serious and draconian step and a measure to be considered only ‘when nothing else will do’.

45. We strongly advise against performance indicators that positively promote an increase in adoptions as these inevitably lead to a distortion of professional activity in favour of adoption at the expense of other choices, particularly permanent family placements.

46. We consider that current legislation in statute and regulations, bearing in mind the recent strengthening of the special Guardianship rules and taking into account Article 8 ECHR, is adequate to ensure a proper and proportionate assessment of a child’s permanence needs when return to parents has been ruled out by a court. We warn that any further tinkering with CA 1989 would be unwise and the thin end of the wedge of social engineering.

47. We welcome the role of the new regional agencies, as a source of expertise and repositories of skills, to advise, guide and support related professionals, such as teachers, in their support of children who are in permanent care. We believe the agencies potentially have an important role to play as ‘research hubs’ and repositories of data to enable much better, relevant and useful research in the highly complex field of adoption and permanent placement.

Ann Haigh, Chair and Margaret Payne, Policy Officer
Nagalro
PO Box 264
Esher
Surrey
KT10 0WA

Tel: 01372 818504
Fax: 01372 818505
www.nagalro.com
na*****@**********co.uk
Principal Administrator: Karen Harris

Calm Down Dear: Why I worry about John Hemming – and why you should too

For now too many years I have been ploughing what seemed like a very lonely furrow, trying to make people understand just what a dangerous and unhealthy influence John Hemming has had – and continues to have – on the nature of public debate and understanding about the child protection system. And consequently the damage he has done to a great many vulnerable people.

The weekend of May 15th 2016 however saw a welcome change. John Hemming managed to be so consistently and persistently wrong about something quite important that a large number of lawyers noticed and commented. John Hemming asserted that lawyers were on ‘effective retainers’ if they had ever acted for local authorities and that their Code of Conduct prevented this as a conflict of interest. It was explained at great length why this wasn’t so; see this post from Nearly Legal. For an entertaining summary of the weekend see this post from Hoaxtead Research.

Pink Tape blogger Lucy Reed also took the time to carefully explain why it did NOT mean a barrister was corrupt or ineffective if they from time to time accepted instructions from a local authority – on the contrary, this allowed the barrister to be more effective at making and running a case.

But as ever, Hemming wasn’t about to let some inconvenient facts get in the way of further promotion of his central agenda; that the family justice system is evil and those who work in it are corrupt. Despite contacting the Bar Standards Board and being told his interpretation of the rules was incorrect, he would not be daunted and was last spotted threatening to campaign for a change in the Bar’s Code of Conduct.

The consequences of any change to the rules which means barristers could not act for parents if they had ever acted for any local authority (or presumably they could not ever defend any criminal if they had once prosecuted another) would mean we would run out of available barristers very quickly. Maybe that is what he wants?

So why worry? A finger in every corrupt pie and consequent exploitation of the vulnerable

What was interesting however was the response from some. It was pointed out that it is ‘futile’ to engage with such as Hemming and that by pointing out this futility I was somehow encouraging him.

I wonder whether some more senior members of the legal profession just don’t understand:

  • the full nature and extent of his activities and
  • just what a game changer the internet has been to allow him to promote his agenda that family lawyers are inherently corrupt.

Whereas only 20 years ago conspiracy theorists were restricted to their lonely bedsits now they have access to professional tools that enable them to produce slick websites that can be seen all over the world. Anyone tempted to smile indulgently at the japery of John Hemming or think me a little odd and obsessive to keep on banging on about it, needs to understand that in every single nasty campaign against the family courts for at least the last 10 years, Hemming has been involved – either directly or by providing support to those who were.

I remain utterly baffled that his activities in supporting those such as Sabine McNeil and Ian Josephs appear to garner very little attention or censure. If you don’t know about the Hampstead Satanic Abuse Hoax, then I suggest you read this and consider the impact not only on the children in the case but the wider community, who have found themselves subject to many months of harassment and accusations from the world wide community of conspirators, alleging that they ate babies or wore their skin as shoes.

When MEPs came to London in November 2015 on a ‘fact finding’ mission to determine if the UK’s family justice system was really as abusive and corrupt as was claimed in a number of petitions (organised by Sabine McNeill) they spoke to some responsible people, such as the Co Chair of the Association of Lawyers for Children and the Family Rights Group. BUT they also took time to discuss issues with John Hemming and his lackey Julie Haines, one of the named ‘McKenzie Friends’ on his Justice For Families website – and what they charge or what he pays them, he won’t be clear about.

Ms Haines has told me that she brings hopeless appeals to the Court of Appeal in the full knowledge that they are hopeless but as a mechanism to show the higher courts just how unhappy people are with the system. Which is all very well and good, but as a campaigning tool to spread awareness it is not merely hugely expensive and a drain on the public purse, it is diverting the attention of our judiciary away from cases where appeals might actually have some merit, and must be at enormous emotional cost to a parent who is presumably unaware that their case is simply being used as an example of a corrupt system. Presumably that parent had some hopes when JFF took on their case; hopes which will soon be dashed.

John Hemming has directly contributed to and supports the continued debasement of our public discussion about matters of huge important to us all – how do we protect children? How do we support families? Certainly since the death of Peter Connelley we have been pushed into ever more extreme positions; from Hemming’s promotion of parents’ rights to the exclusion of any consideration of the child at one extreme, to the Government’s continued push for more adoptions more quickly at the other.

To an extent I suppose we have got what we deserved. As a society we seem uncomfortable with nuance in our debate, are unwilling to accept responsibility and to learn from mistakes, preferring instead the culture of ‘blame and shame’  – for every child beaten to death by his parents, we want another social worker’s head on a plate.

But this really, really matters. John Hemming is encouraging parents to distrust and fear lawyers and thus encouraging them to deprive themselves of our help when they really need it. And his reach isn’t just to the vulnerable and desperate parents – it’s extending now to children.

 

I will leave you with the conclusion of Nearly Legal. I agree. And I think you should too. I am really worried about John Hemming.

Why is this important? Why pay attention to the ramblings of a former MP whose credibility has been demolished by the Courts? Because a lot of desperate and unhappy people do pay attention to him. His advice, including recommending to parents fleeing abroad to frustrate care proceedings, has been acted upon by people. If Mr Hemming now suggests trying to challenge lawyers on the erroneous basis of conflict of interest, or worse, that people should consider a prospective lawyer to be tainted with conflict of interest if they have ever acted for the other side, he is damaging people’s interests, stupidly and unnecessarily.

 

EDIT December 2018

Hoaxstead Research are covering the trial of Sabine McNeil for the breach of her restraining order which attempted to stop her continued harassment of the parents in the Hampstead case. Read here Sabine’s own account of the support and encouragement given to her by Hemming in her battle against the secret family courts.

The Particular Dangers for Professionals if they can’t (or won’t) feel empathy.

This is a post by Sarah Phillimore

I recently posted about the particular dangers for parents of becoming engaged in ‘conspiracy theories’, defined as ‘a story that is based on limited real data and imagined data and blended into a coherent, emotionally satisfying version of reality’.

This prompted strong reactions from some commentators who pointed out that they had been victims of clear wrong doing from professionals, including deliberate falsifying of evidence. They understandably rejected the suggestion that their anger and pain resulting from such experiences was because they were promoting a conspiracy theory.

Some useful discussion followed and I accepted that it was true that a number of different things can be happening. Parents can make assumptions on limited or false data (or be encouraged by others to do so) and equally so can professionals. The dangers for parents are stark – they end up losing their children.

But what are the dangers for professionals of a false narrative?

A professional who tells him or herself a false ‘story’ about the family poses several clear and serious dangers. There is the danger of failing to abide by the law, of advocating a disproportionately harsh response to the families difficulties. There is the danger of causing serious emotional pain to the family by unwarranted interference.

And finally, there is a danger to the professional as a person; that he or she becomes insensitive to pain, lacking in compassion and hence with the potential to cause even more harm to families from insensitive or inappropriate interventions.

Two commentators, Angelo and Jason, spoke with eloquence about the reality of their pain and what professional intervention had done to their families.

Mothers dream of holding their babies no matter how big they have grown. Flashbacks, inventing narratives, daydreams and misery remain theirs for life. On the spiritual, mystic, unknown plains such as ESP, true or not, they can visualize and feel themselves in one another’s arms. Children may go home in their imaginations! Parents would lay down their lives for their children but that would be meaningless; they are forced to go on and on, repeating their narratives again until they get too old or succumb to madness. Children too! Then, if approached in that state by a SW, they will raise both arms in utter contempt and cry pitifully “ F— OFF”. This,i hope,describes how it feels to these parents when they are hung out to dry.

My “narratives” give me nightmares – I wouldn’t say they are self-protective. I have PTSD because of the horrible things that happened to me. In some ways I would like to find a way to think myself to blame, just so I could have that power back, but there was nothing I could have done, it wasn’t my fault. It was shocking to see how far people could get with their lies, but what hurt the most was the cover up.

The discussion that followed was interesting and illuminating for me (and I hope others). As always I am very grateful for those who take the time and trouble to comment on this site and to share their experiences. Because without these attempts to connect and to understand each other, the necessary debate about what is going wrong with our child protection system will remain polarised in unhelpful rhetoric; everyone will be the loser for it.

The discussion allowed me to articulate fully what I think is the problem  – why do working relationships between parents and professionals get so toxic so quickly in many cases? I believe it is down to a lack of empathy and understanding. Between BOTH parents and professionals.

As I commented:

I think the problem is this. I don’t have an emotional horse in this race. So I will make comments that I accept some may find glib or upsetting or dismissive. Because I am not subject to the same overweening emotions and pain.

I think this is why the debate between the different perspectives on the system stalls. Because we react according to our narratives and belief structures, as I believe was the very point of this post initially.

Of course children don’t get adopted by force by ‘one mistake’ They get adopted by a series of incremental issues that build up, step by step until the course is set and it is very difficult to take another course.

Professionals in social work and child protection must not numb themselves against recognising the pain other human beings can suffer. But equally parents must remember that professionals in child protection systems often have to deal very frequently with very distressing situations.

It is easy to feel empathy for a child who is suffering, particularly a very young child who is completely dependent on adult care.  It is much less easy to feel compassion for the angry, hurting parent who tells you to ‘fuck off’ or threatens you, who can’t or won’t keep their house clean, or meet their children’s basic needs.

It is easy for me to see how the professional’s goal becomes ‘rescuing’ that child from a situation of perceived harm.

I was recently tweeted details about a truly shocking case where in 2012 a father successfully convinced a court he had been a victim of false accusations that he shook his baby. Now he is on trial for her murder. This is the ultimate fear that lurks behind many social work interventions with families. If you get it wrong, a child may die. Not only must you carry the pain of what that child had to suffer but you also run the risk of vilification in the tabloids and losing your job and your reputation – as we saw so clearly and horribly in the media storm that followed the death of Peter Connelley.

Of course, parents murdering their children is a rare event. Most parents, with the right help and support at the right time, can look after their children well enough. In now nearly 17 years ‘on the job’ I have met only two parents who I thought were dangerous psychopaths, incapable of feeling love for their children.

But we have to understand what is the monster hiding in the shadows in each and every interaction between parents and professionals. Putting it bluntly – parents fear their children will be taken for no good reason, to feed Government targets for adoption. Social workers fear that parents will hurt their children and the blame will fall on the social worker who didn’t rescue that child in time.

What we all need is empathy.

I quote Brene Brown again:

It is important to note here that empathy is understanding what someone is feeling, not feeling it for them. If someone is feeling lonely, empathy doesn’t require us to feel lonely too, only to reach back into our own experience of loneliness so we can understand and connect. We can fake empathy, but when we do, it’s not healing or connecting. The pre-requisite for real empathy is compassion. We can only respond empathetically if we are willing to be present to someone’s pain. Empathy is the antidote to shame and it is the heart of connection.

And to remember it’s  not an equal relationship

I have suggested that parents also need to try to understand where the professionals are coming from. But I don’t mean to suggest by this that each bears equal responsibility to be compassionate towards the other. Clearly, this is not an equal relationship and professionals hold most of the cards.

Therefore professionals have to remember that the pain and stress caused by their interventions cuts right to the heart of what makes us human. Parents are threatened with the loss or disruption of their relationship with their children. This is primal.

I have known loss, heartbreak and suffering. What human hasn’t? But my child lives with me. I have the privilege of watching her grow, imagining her future and the role I can play in it. I don’t have an emotional horse in this race. And the danger of that is that I may become indifferent or dismissive to those who do.

 

Further reading

Re-Imagining Child Protection – Brid Featherstone, Susan White and Kate Morris.

A mother’s reaction to the lack of empathy shown to her child with learning disabilities

Promoting Humane Social Work With Families

Adoption Breakdown – Why is ‘blame’ required? Does the law need to change?

This is a guest post from an adoptive parent who is concerned about what happens when adoptive placements break down and the local authority apply for a care order for the adoptive child. There are obvious difficulties when the legal test to satisfy a care order seems to be based on ‘blaming parents’ by focusing on the impact of parenting upon the child’s behaviour. For many adoptive children who have suffered trauma in their early lives, their behaviour is most likely to arise out of those traumatic experiences and not because of anything their adoptive parents did or did not do.

Making the court process about ‘blaming’ such parents when an adoption very sadly breaks down, does not seem to help any one. Is it time to amend section 31 of the Children Act 1989? Rather than asking the court to look at issues of ‘significant harm’ and ‘beyond parental control’ should we add ‘complex medical or psychological needs’ as reason to justify the making of a care order – and thus put the focus on the child’s needs rather than the parents’ blame. 

Please support our petition for Parliament

https://petition.parliament.uk/petitions/125814

We hope you can help us raise awareness to a petition for parliament.

We have an our adopted daughter (now 14) and unfortunately at the beginning of February we had to give her up for foster care due to her complex health needs.

The LA are blaming us as ‘bad parents’ but we agree with their recommendations to go for family therapy and help with how to deal with difficult teenagers. We are currently in court proceedings and as we have no dispute in the end result of LA going for interim court order, envisage no problems, it is just the way we get there is what we are disputing.

The PC report was written jointly with a student SW (who we really did not see eye to eye with) and also our AD SW, who we get on great (who is fairly new). While we understand a lot is based on opinion, they have based these on inaccurate, misquoted and even fabricated statements we made in the assessment meetings. We understand their agenda but to simply quote these inaccurate facts is simply unprofessional. We have written our objections back to them in writing and it is with their solicitors.

The PLO meeting earlier in March, went well very accordingly to our solicitors and the LA seems almost sympathetic to our situation, so we do not understand why their reports has been written in a such a way. Maybe to actually have something for the judge to approve on their decision?

We have another AD half-sibling, who LA have agreed can stay with us and who is not attached at all to the one who we gave up to foster carer.

The good news is, the foster carer (who are also close by) have agreed to have our 14 AD till she is 18, they are very nurturing and AD has settled in very quickly (as she has attachment condition as well).

I have got a petition actually published in Parliament (No blame approach to adoption) requesting for an addition to the Children’s Act part IV sec 31, which is to add “has complex medical and/or psychological reasons”.

This is the link: Petition: https://petition.parliament.uk/petitions/125814

PLEASE SUPPORT OUR PETITION TO PARLIAMENT