Author Archives: Sarah Phillimore

CPConf2016 – Where do we go from here?

This is a post by Sarah Phillimore

Criticism may not be agreeable, but it is necessary. It fulfils the same function as pain in the human body; it calls attention to the development of an unhealthy state of things. If it is heeded in time, danger may be averted; if it is suppressed, a fatal distemper may develop.

Winston Churchill

The Second Child Protection Conference will take place on 3rd June 2016 in Birmingham. For more details about the event and how to book a ticket, please visit the Events page at the Transparency Project.

I am very grateful to the Transparency Project charity for once more supporting this event. I am one of the trustees of the Transparency Project, and also the site administrator of the CPR site. I am therefore wearing two different but probably overlapping hats. The aims of the TP are not to agitate for any particular change to the family law system but rather to increase and improve public understanding of how the system is intended to work.

The aims of the CPR site are clearly different – I hope it provides a clear explanation of existing law and practice but it is also unashamedly a vehicle for expressing my often very serious concerns about the activities of those individual and groups which (in my opinion) do so much harm to vulnerable parents and children by their irresponsible and often ludicrous scaremongering and promotion of risibly stupid conspiracy theories.

But I hope these two approaches will come together on June 3rd and help continue the impetus for practical change which we identified at the first conference – Is the Child Protection System Fit for Purpose?

The only critical comments we got about that event from the people who attended (apart from comments about our timekeeping, which was woeful) was that we were too negative and didn’t provide enough discussion about what was already being done that was good or what we were going to do that was better. To some extent that was pretty inevitable – this was the first time we had all come together to share our different perspectives and experiences and before we identify where we want to go, it’s important to find out where we are starting from.

However, I agree entirely that its easy to moan about something, its a bit harder to actually do something that might change it for the better.

I hope very much that the second Conference is going to plant the seeds of serious and positive change.  There have been discussions since June last year about what we could do and those discussions are crystalising into something quite exciting.

There have been some very interesting suggestions from some of our collaborators about what they would like to do and the CPR hopes to be part of this.

The first suggestion is for a new national interactive map of who is providing what advocacy and direct humane social work services to families in child protection.  It’s currently still too hard for parents to find what is there.

Mapping what is already out there will provide a focus for how we put another activities into a more formal scheme.

Particular suggestions so far include:

  • Training for local authority social workers as part of a broader campaign for more humane social work practices;
  • A nationwide scheme for training parents to help and support other parents through care proceedings;
  • Further consideration of what McKenzie friends can offer and considering how this can be regulated/monitored to protect the vulnerable;
  • Looking at other methods of dealing with concerns about families – for e.g.what about mediation in child protection cases?
  • Finding out more about what is done in other European countries, what is working well and what we could think about developing here.

Where do we go from here?

It would be great to see you at the Conference on June 3rd (I still have two free tickets left as of March 6th!). If you can’t come, please join in on the day via our Twitter hashtag CPConf2016 or join in comments on this site or at the Transparency Project.

If you have any ideas for what else could go on the list for discussion on the day, please let me or the Transparency Project know.

Let’s get something started.

 

Applying to discharge or vary a Special Guardianship Order

The law is as set out at section 14 D of the Children Act 1989, which is set out at the end of this post.  We can see from this that a parent can apply to vary or discharge an SGO but needs the court’s permission first.

‘Vary’ means you want to change the content of the order; ‘discharge’ means you want the order to come to an end. There is probably little point in applying to discharge or vary an order until at least six months have passed since it was first made – if you think that the order should not have been made in the first place, you should consider applying to appeal – but you will have to do that within 3 weeks.

Special Guardianship Orders are meant to be a way of providing a child with a permanent home throughout his childhood so you will need good reasons to say that the order should no longer apply, once it has been made. There is no automatic legal aid for parents in such proceedings.

For more general information about SGOs, see this post. 

The courts have decided that this is a two stage test.

a. First the parent must show a change of circumstances.
b. Then the court will consider the child’s welfare and the parent’s prospects of success in challenging the SGO.

Step 1: What counts as a ‘significant change of circumstances’ ?

The courts are unlikely to place much weight on use of the word ‘significant’ when applied to the word ‘changes’. In G (A Child) [2010] EWCA Civ 300 Wilson LJ decided to proceed on the basis that there is no relevant difference between applying for permission to discharge a placement order [under section 24(3) of the Adoption and Children Act 2002] and applying for permission to discharge an SGO, even though section 14D refers to ‘significant’ changes and the Adoption and Children Act does not.

Various courts have agreed that the bar cannot be set too high so that no parents could ever get over it; parents should not be discouraged from trying to improve their circumstances. But the change in circumstances has got to be a relevant one.

In the case of Re B-S (Children) [2013] EWCA Civ 1146 the court described the test for ‘change of circumstances’ in this way, in the context of the Adoption and Children Act 2002:
a. … the court has to be satisfied on the facts of the case that there has been a change in circumstances ‘of a nature and degree sufficient, on the facts of the case, to open the door to the exercise of judicial evaluation’
b. the test should not be set too high, because parents should not be discouraged from bettering themselves or from seeking to prevent the adoption of their child by the imposition of a test that is unachievable;
c. whether or not there has been a relevant change in circumstance must be a matter of fact to be decided by the good sense and sound judgment of the tribunal hearing the application;
d. if there is no change in circumstances, that is the end of the matter, and the application fails.

In another case also called G (A Child) [2015] EWCA Civ 119 the Court of Appeal agreed that a change in the child’s circumstances could also be relevant.

Therefore, the parent will have to demonstrate some relevant changes which on the facts of the particular case in front of the judge, means it is appropriate for the Judge to consider moving on to Step 2 of the process. It is likely that if the concerns about your parenting in the care proceedings were very serious, you will need to show correspondingly serious changes.

For example, in Re G [2010] the mother’s child was living with the maternal grandmother under an SGO after the mother had been in a number of violent relationships. However, the grandmother agreed she would not oppose permission being given to the mother to apply to discharge the SGO, after hearing about the efforts the mother had made to attend counselling/therapy to help her make better relationship choices in the future. The mother was also caring successfully for her second child without any intervention from Children’s Services.

Step 2: What do the courts mean by considering issues about ‘welfare’ and ‘prospects of success’ ?

Having determined that the approach to ‘change’ should be the same for applications to discharge an SGO and to discharge a placement order, it made sense for Wilson JL to also decide in G (A Child) [2010] that courts should take the same approach after deciding that the circumstances had changed.

Wilson LJ confirmed that this means the approach in M v Warwickshire County Council [2007] should be followed, where he said at paragraph 29 of his judgment in that case:

In relation to an application for leave under s.24(3) of the Act I therefore hold that, on establishment of a change in circumstances, a discretion arises in which the welfare of the child and the prospect of success should both be weighed. My view is that the requisite analysis of the prospect of success will almost always include the requisite analysis of the welfare of the child. For, were there to be a real prospect that an applicant would persuade the court that a child’s welfare would best be served by revocation of the placement order, it would surely almost always serve the child’s welfare for the applicant to be given leave to seek to do so. Conversely, were there not to be any such real prospect, it is hard to conceive that it would serve the welfare of the child for the application for leave to be granted.

This means a change in circumstances is a necessary but not sufficient condition to get permission to make the application to discharge a SGO – it opens the door for the Judge to consider it and he or she will then examine the often overlapping issues of the child’s welfare/prospects of success of the application.

The child’s welfare is not however the paramount consideration for the court in this exercise. Also, the issue of  “a real prospect of success” relates to discharging/varying the order NOT necessarily the return of the child to the parent’s care. See Re G [2015].

At this stage, the courts will probably want to consider how long the changes you have made have been in place, and how likely they are to be sustained in the future.

 

Section 14 D Children Act 1989

Special guardianship orders: variation and discharge

(1)The court may vary or discharge a special guardianship order on the application of—
(a)the special guardian (or any of them, if there are more than one);
(b) any parent or guardian of the child concerned;
(c )any individual in whose favour a [Child arrangements order] is in force with respect to the child;
(d) any individual not falling within any of paragraphs (a) to (c) who has, or immediately before the making of the special guardianship order had, parental responsibility for the child;
(e) the child himself; or
(f) a local authority designated in a care order with respect to the child.
(2) In any family proceedings in which a question arises with respect to the welfare of a child with respect to whom a special guardianship order is in force, the court may also vary or discharge the special guardianship order if it considers that the order should be varied or discharged, even though no application has been made under subsection (1).
(3) The following must obtain the leave of the court before making an application under subsection (1)—
(a) the child;
(b) any parent or guardian of his;
(c) any step-parent of his who has acquired, and has not lost, parental responsibility for him by virtue of section 4A;
(d) any individual falling within subsection (1)(d) who immediately before the making of the special guardianship order had, but no longer has, parental responsibility for him.
(4) Where the person applying for leave to make an application under subsection (1) is the child, the court may only grant leave if it is satisfied that he has sufficient understanding to make the proposed application under subsection (1).
(5) The court may not grant leave to a person falling within subsection (3)(b)(c) or (d) unless it is satisfied that there has been a significant change in circumstances since the making of the special guardianship order.

Why don’t Social Workers Feel Safe About Speaking Out?

 

And what can we do to help?

This is a post by Sarah Phillimore

The post arises out of an interesting Twitter discussion between lawyers and social workers on Sunday 20th February 2016.

In essence, we were discussing the forthcoming Child Protection Conference, organised by the Transparency Project on 3rd June 2016 in Birmingham ‘ Where Do We Go From Here?’ following on from last year’s successful event: ‘Is the Child Protection System Fit for Purpose?’

What was sobering and worrying for me, is that one of the social workers who came last year discussed how she had not felt safe to reveal that she was a social worker, given what she perceived as an atmosphere at the conference which was very negative and hostile towards her profession. This was alarming as I had naively thought we had successfully worked hard to create a safe and respectful environment to allow people to speak .

During our Twitter discussions the social worker elaborated further about just how draining it is to feel constantly blamed and discredited for the failings of an entire system and how those attacks quickly become personal. She spoke of being ‘hated’ on line and discussed how she had been attacked and vilified to extent that she had to disengage from debate on many occasions.

She raised a further very troubling point; that policies on use of social media set down by local authority employers are extremely strict and in effect prohibit social workers from engaging in even general discussion. This view was confirmed by a number of other social workers on Twitter who pointed out that they were posting anonymously.

This raises for me some very troubling issues; both general and particular.

The general issue – Why can’t social workers speak out?

I clearly have a rosy tinted view about the freedom of speech for social workers as those I have been exposed to recently have been feisty, engaged and very outspoken; see this post on my attendance at the Promoting Humane Social Work Conference in February.

However, I can understand the position is very different for a social worker employed by a local authority who is subject to a strict policy about engagement on social media. No one wants to risk their job or their reputation for a Twitter conversation.

I have not conducted any detailed research into local authority social media policies but my cursory investigations suggest the following:

Superficially social media and the use of it,  is seen as a ‘good thing’: for example, this policy from the Local Government Association says:

The LGA is committed to supporting local government colleagues to help realise the full potential of social media. We believe that, used correctly, social media is a powerful tool helping to drive cultural, political, economic and social engagement. It is also a key communications tool for local authorities and highlights their commitment to openness and transparency.

But it’s not clear that this support is translating into general practice. It is also likely that any existing policies are not a result of long gestation: research in 2013 showed that 43%  of local authorities had no policy about use of social media.

And regardless of the policies themselves, certainly the interpretation of those policies by the social workers on Twitter on Sunday night, was to find them either prohibiting outright, or inhibiting significantly engagement on social media for employees of a local authority.

It was a sobering wake up call for me; I have often complained that social workers won’t speak out and I was disappointed at how few engaged with the first Child Protection Conference. I had not appreciated what forces may have marshalled against them to prevent their engagement. The issues of cost, getting time off work AND perceiving that you cannot speak out and keep your job are pretty powerful forces against your engagement.

The specific point – what can we do to encourage social workers to come to the conference?

I think we need to look at the conference ground rules again with care and make sure the message is going out that everyone who comes is entitled to speak freely and to feel safe while doing so.

We ought to be able to disagree with each other and yet still recognise and respect our essential humanity. No one should feel that a disagreement is a personal attack. We need to experience constructive criticism as an opportunity for change and improvement, not as an excuse to sink further into the culture of blame and shame, which already casts a long and toxic shadow over debate in this area. 

But probably the most important thing is to engage directly with the professional bodies that represent social workers  – what support are social workers getting from their professional bodies? What’s the message they are getting about how and when they can engage?

Because this is vital. We can’t make changes if some of the people crucial to the debate feel scared to talk.

I will see what responses I get and hope to update this post.

 

Promoting Humane Social Work With Families

Listening to and Learning From Each Other

On February 19th 2016 I attended the conference about promoting humane social work, at Kings College London which had been organised by the British Association of Social Workers in conjunction with the University of Bedfordshire and Making Research Count. For more details, see the BASW website.

I am very grateful to Brid Featherstone for inviting me. It was both an interesting and inspiring day. Have a look at #cpchange2016 for more tweets about the discussions and issues raised.

I hope we can continue the conversation further at the Second Child Protection Conference, organised by the Transparency Project on the 3rd June.  We will be joined by many of those who spoke today – it is clear that top of the agenda must be to discuss how we can go about setting up an organisation for parent advocates; it works in Finland and it works in NYC.

Why organise this conference?

Guy Shennan, the current Chair of BASW,  Brid Featherstone (Professor of Social Work at the University of Huddersfield) and Maggie Mellon (Vice Chair of BASW) opened the conference, explaining why they had organised it. Social Workers needed to find their voice as difficult conversations needed to be had.

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

This was one of the most popular tweets of the day from the CPR Twitter account:

 

The views of parents

Amanda Boorman of the Open Nest charity spoke of her experiences with her adopted daughter and how she made contact with her birth family to enable her daughter to make sense of her history. She showed a short film ‘Severance’ which showed daughter and mother meeting after five years of separation; powerful, moving and very compelling watching for anyone tempted to think adoption is a panacea for all the problems of traumatised children.

We need to think more critically about what we are trying to achieve and how we do it

Suriviving Safeguarding spoke of her wish to set up a national scheme of parent advocates, to enable others to get the help and insight she had needed to successfully fight for her son.

She spoke powerfully of her experiences including her recognition that she had to take ownership of her own difficulties. But neither she nor her family were helped by a punitive and adversarial approach from her Local Authority. Her story is also told today by journalist Louise Tickle in the Guardian.

 

Working Together to Change a System

The impact of parents to act as powerful ‘countervailing force’ against a rigid bureaucracy was taken up by David Tobis, author of ‘From Pariahs to Partners: How parents and their allies changed New York City’s child welfare system’. 

A sociologist, he has worked with UNICEF and other organisations to improve child protection systems around the world. For 25 years he has worked particularly with the child welfare system in NYC – in the 1990s one of the worst in the USA. By marshalling the energies of parents who worked with other allies such as lawyers and social workers, it was possible to create and sustain real and positive change; the numbers of children taken into care falling from 50,000 to about 10,000. 

He was clear that none of us can do this on our own. We need to work together. Bringing parents into the process allowed them to tell their stories and be seen as humans, not monsters. This connection helped ease feelings of stigma and shame about seeking help.

The day finished with further panel discussion from Andy Bilson (Emeritus Professor of Social Work at the University of Central Lancashire), Ruth Allen (incoming CEO of BASW); Professor Sue White (of Birmingham University); Anna Gupta (Senior Lecturer in Social Work at Royal Holloway, University of London) and Marion Russell (Principal Social Worker at Cornwall County Council).

We also heard contributions from the floor from two parents whose children are in care; expressing their frustration with the process and echoing the need for change.

Cathy Ashley also spoke of the work of the Family Rights Group and the work of Your Family Your Voice Alliance, and urged people to join.

 

Where do we go from here?

The underlying principle of the day was probably summed up by Brid Featherstone

I hope we can continue this very necessary conversation, with contributions from everyone who is involved – parents, lawyers, social workers, experts, children.  Not only are the Transparency Project organising an event on June 3rd, but also Your Family Your Voice Alliance will be meeting on June 22nd.

What we now need to do is put conversation into action.

Reference too to Margaret Mead; we need to be reminded more often of the truth of this.

Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it’s the only thing that ever has.

 

Family Law Class organised by the Bristol CJC 20th January 2016

HHJ Stephen Wildblood QC to offer further free family law session in Bristol.

20th January, 6-8pm at UWE.

Following the success of the first free family law session at the Bristol Civil and Family Justice Centre in October of last year, a second free Bristol family law session is planned to take place on Wednesday, 20 January 2016 from 6.00pm-8.00pm at the University of the West of England, Frenchay Campus, Bristol.

The event is once again aimed at anyone interested in finding out more about the Family Court, all professionals working in the field of family law, journalists and students.
Join HHJ Stephen Wildblood QC, designated family judge for the Bristol area, and a panel of experts to hear about the work of the Family Court and what to do if you are faced with a personal or family disagreement.
Following feedback from the first event, new topics and speakers have been added and the question and answer session will be extended to promote further debate.

The topics covered will include:
• How to access help and support if faced with a personal or family disagreement
• The role and work of the Social Worker
• The role and work of the Guardian
• How decisions are made about children

You will have an opportunity to ask questions about the practice of the Family Court. The panel of experts will include:

• HHJ Stephen Wildblood QC
• Sarah Stott, Cafcass
• Patrick Moreno, Senior Lecturer at UWE, specialising in children’s social work
• Louise Tickle, Journalist
• Judi Evans, Barrister, St John’s Chambers
• Lucy Reed, St John’s Chambers
• Sarah Phillimore, St John’s Chambers
• Zahid Hussain, Barrister, St John’s Chambers
• Emma Whewell, Senior Lecturer in Law, UWE
•
To apply for a place, please click on the following link: http://uwe.formstack.com/forms/family_law_session

For information about how to find Lecture Theatre 2B025, the bus stops and the car parks on the UWE Frenchay Campus, please see the attached Frenchay Campus map.
Please note that parking is free on the Frenchay Campus after 5pm.

If you have any access or special requirements, please contact [email protected] in advance of the event.

Free tea/ coffee will be available from 6pm to 6.30pm. The event will start at 6.30pm and finish at 8.00pm.

For more information visit www.familycourtinfo.org.uk – the site is aimed at people who are involved in or may be involved in a case in the Family Court in this area (Bristol, Weston, Gloucester and Bath). It sets out the range of help that is available locally, and provides basic information about how the Family Court works.

 

Why do I worry about John Hemming?

This is a post by Sarah Phillimore

It seems that a lot of people genuinely have no idea about the full extent of John Hemming’s activities and the kind of people he supports. I am often asked on Twitter and elsewhere – but why don’t you support John Hemming? He does so much good and has exposed so much wrong doing?

So I am going to collect here the reasons why, so if I am asked that question again, my response can be speedy and efficient.

I accept that John Hemming has done some good for the family law system. I accept for example that he was right to be concerned about applications to send people to prison which were not being publicised or reported. He was right to be concerned about LA’s historic ignorance of and failure to comply with the Vienna Convention.

But. But. But. The harm he has done by his promotion of and support for the most malignant of the conspiracy cottage industry fantasists I am afraid far outweighs the good. And what is worse, he keeps on going and now appears to be the voice of our country to the European Parliament.

This is not right. This is not acceptable. This is positively dangerous.

But don’t take my word for it. Read these links and make up your own mind. I will probably be adding to this list

HIs historic activities

http://www.ministryoftruth.me.uk/2011/04/27/hemming-an-abuse-of-privilege/

http://www.theguardian.com/commentisfree/2007/aug/08/hemmingsway

His distortion and misreporting of important cases

http://www.headoflegal.com/2013/12/04/booker-hemming-and-the-forced-caesarian-case-a-masterclass-in-flat-earth-news/

http://www.pinktape.co.uk/cases/never-let-the-facts-get-in-the-way-of-a-good-story-eh/

https://childprotectionresource.online/the-woeful-state-of-our-debate-about-child-protection-part-ii/

Including his eagerness to make serious accusations with no evidence in abuse of his position

http://www.bailii.org/ew/cases/EWCA/Civ/2008/462.html.

See in particular para 88 of that judgment:

I find it not only unacceptable but shocking, that a man in Mr Hemming’s position should feel able to make so serious an allegation without any evidence to support it. In my judgment, it is irresponsible and an abuse of his position. Unfortunately, as other aspects of this judgment will make clear, it is not the only part of the case in which Mr Hemming has been willing to scatter unfounded allegations of professional impropriety and malpractice without any evidence to support them.

His support for Belinda McKenzie and Sabine McNeill

https://theneedleblog.wordpress.com/2015/03/27/hampstead-mckenzie-friends-and-terence-ewing/

https://theneedleblog.wordpress.com/2015/04/26/why-i-do-not-support-john-hemming/

https://hoaxteadresearch.wordpress.com/2015/08/03/amber-hartman-v-confidentiality/

[And if you don’t know why these women are dangerous, read the judgment in the P and Q case or this blog post by Barrister Blogger.]

 

His association with Ian Josephs and others of questionable repute

https://childprotectionresource.online/helping-parents-leave-the-jurisdiction/

 

He gives vulnerable people really bad advice

http://www.independent.co.uk/news/uk/crime/liberal-democrat-mp-john-hemming-tells-parents-suspected-of-child-abuse-to-flee-because-they-can-t-9054716.html

Some credible people seem to accept him as legitimate

https://childprotectionresource.online/censorship-and-the-protection-of-commercial-interests-the-woeful-state-of-our-debate-about-protecting-children/

https://childprotectionresource.online/the-woeful-state-of-our-debate-part-iv/

https://twitter.com/pennylilac/status/662787454085255168

http://www.marilynstowe.co.uk/2015/08/19/adoption-a-look-at-the-statistics-by-john-hemming/

And his refusal to ever accept that he has done anything unwise or wrong…

https://twitter.com/SVPhillimore/status/673292636820754433

 

EDIT. John Hemming is concerned that I ‘misrepresent his views’ about my claim that the refuses to accept wrongdoing over his patronage of Sabine McNeill and Belinda McKenzie.

Apparently he had no idea what they were up to prior to January 2015 and therefore should not be criticised for failing to withdraw earlier as their patron.

So the questions must be now:

  • if you DID NOT know what they were up to before 2015, despite your longstanding involvement with Sabine McNeill, why didn’t you? and
  • if you DID NOT know what they were up to, why on earth did you offer them your patronage without at least some cursory investigation of their activities?

Read what Sabine was up to in 2011. And how commentators Avalon111 and Jimmy were able to recognise what John Hemming apparently cannot.

As of May 2016, Sabine doesn’t seem to realise she has been cut adrift by John Hemming. Her support for him remains strong.

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.

 

So yes, I am afraid I remain really worried about John Hemming.

 

 

The woeful state of our debate Part VI: 8 questions to ask family judges.

On November 24th I attended the 9th Annual Family Justice Council debate at the Strand Palace Hotel in London. You can read more about the debate and the work of the FJC at this post on the Transparency Project.

To my surprise, I found Ian Josephs himself in attendance; he took the floor to deliver a speech which had a strangely familiar ring – he seems to repeat the same things over and over again on various blogs. Also, on every chair was a piece of A4 paper which set out ‘Eight Questions to Ask Family Court Judges’ which I assume was also the work of Mr Josephs as it is set out on his website.

But I thought it was worth deconstructing here – to remedy a little the deep unease I felt at seeing Mr Josephs take to the floor in the way he did; without challenge or rebuttal (I did not think it would be appropriate to intervene, given my likely inability to remain composed and polite). Its all very well people saying he is a harmless buffoon – but people do listen to him and worse, they sometimes take his advice. And as his actions with regard to Marie Black show, he isn’t harmless, not by a long chalk.

We have to tread a fine line between heavy handed censorship and giving dangerous people a platform. I felt his presence and his contributions to the FJC debate stepped over that line into giving him a degree of respect and credibility I do not remotely think he deserves.

But judge for yourselves. Here are his ‘8 questions’ and my responses.

1. Great Britain is the only country in the world where substantial numbers of pregnant women seek asylum in other countries to have their babies SAFE from UK social services and forced adoption.  Yes British mothers are fleeing the country in ever increasing numbers to avoid the adoption of their unborn babies. Surely this shows that something is very badly wrong?

The immediate problem with this is that it is strong on rhetoric, weak on substance. There is a network of people helping ‘mums on the run’ ; Josephs himself claims to have helped about 200 families over an undisclosed period of time while Brian Rothery alleged in 2014 that 1 family arrived in Ireland ‘every week’.

But the problem is, as Josephs has enthusiastically confirmed on this blog, he doesn’t carry out any risk assessments or keep any records. So where is he getting the information to support this very clear assertion that ‘substantial’ numbers of women are fleeing and that these numbers are ‘ever increasing’ ?

Nor is it true that ‘Great Britain’ is the ‘only’ country ‘in the world’ where pregnant women leave the country to avoid the authorities. I can’t comment on his use of the word ‘substantial’ as he doesn’t even attempt to define it. For example, the Nordic Committee on Human Rights (whose President Ruby Harold Claesson appears to associate closely with John Hemming, Ian Josephs and Sabine McNeill) claimed in 2012 that 

Since the beginning of the 1980’s, a great number of families have fled from Sweden in order to protect their children from being taken into care and placed in foster homes.

Yes, it does show something is very badly wrong if pregnant and desperate women are choosing to leave their  homes, their families and their support networks with the assistance of cash from Josephs. But what is wrong is that vulnerable people are being so poorly advised; it is notable that Josephs never appears to talk about what happens when it goes wrong – how Ireland, for example, certainly does not see itself as offering a ‘safe haven’ to those escaping a brutal and repressive regime and will co-operate with the UK authorities to return children. 

2. Adoption without consent is a last resort when nothing else will do say the legal guidelines but this cannot be true, since many other countries such as France manage to find other ‘resorts’ and thus never need to use this so called last resort, so why cannot the UK adopt the same remedies as the French for example?

It is a reasonable point that severing the legal ties between child and parent is something that England and Wales seem keener on doing than do other European countries – see paragraph 72 of this report for the Council of Europe in March 2015. But what are these other ‘remedies’ used by the French? It seems that other countries do not keep the same kind of data that we do about the number of children who are not living with their parents. But certainly every European country permits adoption; abusive parents are a universal phenomenon. It seems that other European countries make more use of long term foster care than we do – but this doesn’t necessarily mean that children remain in contact with their parents or that the parents can enjoy any meaningful exercise of their parental responsibilities.

Ian Josephs doesn’t seem to know what other ‘remedies’ or ‘resorts’ other countries use; to be fair to him, that isn’t widely circulated knowledge. Hopefully comparative lawyers such as Dr Claire Fenton-Glynn can undertake further research so we can better understand what other countries do and why they do it.  Ironically, it seems that Ireland may reform its historically restrictive adoption laws in order to increase the numbers of children adopted from foster care.

3. The President of the family courts in re J (a Child) said that since the abolition of capital punishment the most drastic decision any judge could make was to take its child from its parents. If a sane mother with no criminal record has her new born baby removed for ‘risk of emotional abuse’ she is punished without her breaking any laws. Surely punishment without crime is as illogical as it is wrong?

The problem with this is that Ian Josephs continually frames care proceedings and the removal of children as ‘punishing’ parents, when the aim of such proceedings is to protect children. Thus this question is inapt. I understand and accept that to many parents the loss of their children is a devastating emotional blow, but that doesn’t make it a ‘punishment’ inflicted by the state.  That is why new born babies can lawfully be removed. It is not to ‘punish’ the mother but to protect that baby. The law recognises that this is an exceptionally serious course of action and is only lawful if there is a serious risk to the child based on established history, such as drug abuse or persistent cruelty/neglect by the parents of their elder children.

‘Punishment without crime’ is one of his favourite catchphrases but its meaningless in this debate.

4. Many babies and young children are taken at birth for eventual adoption from mothers diagnosed with ‘borderline personalities’ and similar mental failings by court appointed experts. Unlike defendants in criminal courts parents in family courts are not allowed to get a second opinion from a private medical source to call as their witness without permission from the judge. Surely that is a violation of Article 6 (Human Rights Act) giving persons appearing in court the right to call witnesses in determination of their civil rights?

I don’t know what is meant by ‘many’ babies and young children taken because their mother has borderline personality disorder – which is a serious mental health issue. That isn’t my experience in practice. I don’t know what information or statistics he has to allow him to state this.

What does he mean by ‘court appointed experts’ ? Yes, the court must permit the instruction of the expert but the expert must be instructed and agreed by ALL the parties, including the parents. Reference to Article 6 of the ‘Human Rights Act’ is telling – he means Article 6 of the ECHR. Does he actually understand what he is referring to?

If not being allowed a second expert is indeed a breach of Article 6 of the ECHR then it is odd that there has been no successful challenge to section 13 of the Children And Families Act 2014 which makes it very clear that the courts will now be reluctant to permit even one expert, let alone two.

5. Research has shown that Open Adoptions have better results for children then closed adoptions used in the UK that break all contact with birth families. If parents were promised at least one annual contact by court order (birthdays or Xmas perhaps?) thus avoiding the heartbreak of no contact at all (letter box being remote and seldom continued) many parents would not go through the agony of contested hearings so would not this be a good thing?

I agree that we need more research and more open minded thinking about adoption and contact – which I have discussed previously here. I don’t know what research he is talking about. Certainly continued contact with birth families who cannot support the adoptive placement or actively attempt to undermine it, is not a positive experience for anyone. Sadly, the reason why so many adoptive parents and social workers are wary of continued direct contact with birth families may well stem from the kind of advice Ian Josephs gives to birth parents, see for example the first of his ‘Golden Rules’ :

IGNORE SOCIAL WORKERS!! They have NO authority .Don’t talk to them ,never go to their meetings (You will be outnumbered by at least five or six to one and bullied accordingly),never obey them,never never believe what they say,never sign any documents they give you, never allow them in your house(but if they then call the police let the police in but not the social workers),never let them assess you, or send you to the psychobabble charlatans !They are paid to diagnose nearly every parent who is sent to them with non existent illnesses such as borderline personality disorders or narcissistic traits = you don’t like or admire social workers !Many of them really are “the scum of the earth!”and deserve to be locked up for perjury and corruption!

And is it a serious suggestion, that parents will be ‘happy’ with the promise of one direct contact a year and will not then contest the care proceedings? This is an extremely odd belief for Mr Josephs to hold, given that he appears to dedicate most of his website into urging parents to simply refuse to co-operate in any way at all with social workers. His mindset is that removal of children is not justified unless the parents have committed a criminal offence so why should any parent who is not convicted in a criminal court give up their right to care for their child in exchange for one direct contact a year? This suggestion makes no sense.

6. Many babies are taken at birth for ‘risk of emotional abuse’. Something unique in Europe and impossible for parents to defend against court experts who are usually judged more likely on probabilities to be correct than a distraught mother. When adoption follows due to risks that may never happen (from an ex partner who was violent for example) surely these at least are cases where forced adoptions should simply not be allowed?

I don’t know how many babies are taken for ‘risk of emotional abuse’. In my experience at least this is rare. Cases where new borns are removed usually involve serious and long standing issues around drugs, violence and/or mental health difficulties, often the mother has had other children removed who did actually suffer harm.  Again, the reference to ‘court experts’ – there is no such thing.

I note also the trivialising of the violent ex – a repeated refrain in the comments of Mr Josephs. He has little understanding or patience with any suggestion that a women who choses a violent partner may do so out of her own problems with low self esteem or co-dependency and may go on to chose other violent men in the future ,unless she can get some help to break the cycle (for example via the Freedom Programme). Violent men are a massive risk to children.

One of the most unpleasant and uncomfortable parts of the FJC debate for me was when Ian Josephs got a big laugh from the room when he suggested that no Italians would have their children under the UK’s approach to domestic violence. This was offensive and unreal. The problem with violent partners is not simply a bit of excitable shouting as per some offensive Italian racial stereotype. The impact of exposing children to violence is real and serious and Ian Josephs continually shows that he just doesn’t understand.

7. Article 10 (Human Rights Act) reinforces our democratic right to free speech. Surely it is a gross violation to gag mothers whose children have been taken (for possible adoption) by preventing them under threat of jail from identifying themselves and their children when protesting to the media. Similarly is it not also a violation of Article 10 to gag both children in care and parents during contact sessions preventing them from reporting abuse or injuries received in care, discussing their cases, whispering or discussing adoptions under threat that contact will be immediately stopped if parents or children break these rules?

Again, it is NOT the Human Rights Act he means, but Article 10 of the ECHR. I agree he has a point about our stringent rules on confidentiality in children proceedings – I think they are too strict and they should be relaxed; a proposition with which the President of the Family Division agrees. We do need to be able to talk about important issues, such as the State’s intervention in our family lives.

But the rest of this is odd. It underscores that Ian Josephs – in common with so many of the other campaigners in this field – don’t really see children as anything other than adjuncts of their parents. It is the parents’ feelings that matter. The children are there to mop up those feelings. It should be immediately obvious why it is not desirable in a contact session to start conversations about the proceedings or the fact that the children might be adopted. Younger children are likely to be simply distressed and confused by such conversations. Contact should be about enjoying the time with one another, not a platform for a parent to make their case to their children.

8. In many cases parents who have committed no crimes are forbidden by the family courts to contact their own children directly or even indirectly by email etc. Surely that must be a flagrant violation of Article 10 allowing free association when parents as a consequence jailed for breaching the order by sending a birthday card or waving at their own children in the street?

The reason why a parent would be forbidden to so contact their children is almost always because when the parent has been allowed direct contact they have abused that in very serious ways. For example, Vicky Haigh who attempted to brainwash her daughter into believing that she had been sexually abused by her own father. It is a useful indicator of Mr Josephs’ mind set that he cannot accept that Vicky Haigh is anything other than a victim of the Evil Secret Family courts. Again, I suspect this flows from his philosophy that children are important only in so far as they reflect their parents’ desires and emotions.

 

The woeful state of our debate Part V: Linda Arlig, Her Hammer and some Nails.

The curious ‘rhetoric case’ of Linda Arlig

This is a post by Sarah Phillimore

Over the past two years I have been repeatedly referred to a document authored by Linda Arlig of the Department of Social Science, the Psychology Section of the University of Orebro, Sweden.  It is called ‘The Rhetoric Case: Persecution strategies in a child care order investigation’.

After the most recent of such referrals, by a McKenzie friend who is adamant that professionals routinely lie and are corrupt, I thought I had better actually read it and make up my own mind.

It is a very curious document. I attempted to find out more about Linda Arlig and the University of Orebro because it did not seem to me that this could be a serious academic investigation from a credible institute.  I found a copy of her report (first posted December 2013) on the website for the Nordic Committee for Human Rights. At first blush this looks a very professional set up, until perhaps one visits the ‘about’ tab and reads:

In Sweden, and the other Nordic countries, the welfare state has permitted the social authorities to take children into public care. The instrument used is the Law on the ward of Minors (LVU). Thousands of children have been – and are being – taken from their parents and placed in foster homes among complete strangers. These foster homes are often of poor quality and their prime aim is to earn money off the foster children. Foster parents are very well paid to take care of foster children. The families whose children are taken into public care are often lone parents, unemployed and/or on welfare. Immigrant families are very often exposed and affected in this context. The social authorities are very quick to jump to the conclusion that these parents could impossibly be suitable parents. It goes without saying that this is not necessarily the case. The fact that a person does not fit into the very competitive work-market does not make him or her unsuitable as a parent.

In the Nordic countries, quite unlike the Catholic countries of Europe, very little respect is shown for family and private life. The right to respect for private and family life is guaranteed by the UN Declaration of Human Rights and Article 8 of the European Convention of Human Rights and Fundamental Freedoms.

So, a website with a clear and partial agenda, one that might come to a surprise to the Forced Adoption campaigners in the UK who say we stand alone in Europe as a beacon of repression and unfairness to birth parents. But not perhaps John Hemming, who attended a conference with the NCHR President in 2014.  So I draw some conclusions about the agenda of the NCHR from the company they keep.

EDIT: I draw even more negative conclusions about the integrity of the NCHR when I see who else they associate with, including Sabine McNeill and Ian Josephs. 

The University of Orebro appears to be a real place although my google sleuthing reveals very little else about Linda Arlig.

It  may be that some of the difficulties I have with the paper stem from poor translation, despite four people being credited with the translation to English. For e.g. frequent references in the text are made to a ‘social secretary’ which I assume from the context must mean ‘social worker’.

However, poor translation can only account for some of the criticisms I am about to make.

The general point about rhetoric

The purpose of the ‘art of rhetoric’ is to use language to control, steer and influence people. There are various strategies one can adopt in order to further this end, such as using emotional and stirring language or keeping quiet about inconvenient bits of information. It is clearly not a helpful strategy in the child protection field where language should be as clear and precise as possible in order to assist the court make proper findings about what has actually happened or is likely to happen, and thus to make the best order for the chid.

This report in particular

Having printed it off to read – the font on the NCHR site being too small for comfort – I have 98 pages. The Abstract states :

The purpose of this study is to make a critical examination of six official reports in an LVU (Care of Young Persons Act) investigation, to detect the possible occurrence of persecution strategies in the social welfare service reports and, in that case, to define the strategies used and examine whether the investigation complies with the legitimate claims of objectivity and impartiality.

In the official reports, fifty-six different persecution strategies appear. Definitions of the strategies found are produced, and their application in the case will be shown in passages from the reports. The main patterns seen in the investigators’ actions are: “Power defines reality,” and “influencing and persuading the reader”. Two techniques were found in the material, withholding and fabricating, which co-operate to make an investigation defective.

The strategies have been divided into six groups depending on their purpose:
Persuading the reader through language: contains twelve strategies that the investigators use to try to make the reader come to the same conclusion as themselves.
Making the client seem pathological: contains eight strategies that describe the client as peculiar, mentally unstable, aggressive, etc.
Ignoring objectivity aspects: contains seventeen strategies such as, for example, ignoring the client’s perspective, suppressing information, exaggerating information, fabulation, irrelevant statements, etc.
Exercising power and control: contains six strategies that are all connected with the authorities trying to take control of the client’s life.
The authorities know best: comprises five strategies containing blind faith, moralising, self-justification, emphasis on the social authorities’ resources and exceeding the limits of one’s competence.
Feel-think-believe-experience-interpret: contains nine strategies that are influenced by the investigators’ subjective interpretations, arguments, etc.

Throughout the investigations, the client’s perspective is ignored and references to sources are missing. My conclusion is that the investigations are defective, and that they violate the Constitution Act, Chap. 1, Para. 9, containing directives concerning objectivity and impartiality. The documentation of the case contains a considerable number of distinct persecution strategies.

However my report appears to contain reference to only one distinct case; that of Elizabeth and Anne Edner. The first 42 pages are taken up with explaining what is meant by persecution strategies with frequent references to Edvardsson, I assume another Swedish academic.

Lying as a strategy

One particular alleged ‘persecution strategy’ piqued my immediate interest; the assertion that professionals routinely fabricate evidence.

  • Arlig asserts  that to ’emphasis that the authority knows best, data are [sic] fabricated by means of various persecution strategies’  in order to create ‘monster parents’  [page 9/98].
  • Arlig refers further to ‘secret evidence error’ where ‘one keeps evidence secret. If evidence is missing there is fabulation or lies’.
  • She cites Moijer (1989) who says that some experts use professional terms to impress their audience or ‘sometimes simply to mislead’
  • para 5.4.2. at 34/98 makes explicit reference to the ‘fabulation strategy’ where an investigator ‘generalises, exaggerates, or shifts from making intimations to presenting them as certain facts… this is expressed through words being removed, added, changed…’
  • Para 5.4.4. at 35/98 makes explicit reference to the ‘Lying strategy’  where ‘a statement is consciously made although the author knows that it is a lie’.

Thus the immediate and obvious problem of this report is that Arlig is clearly keen to fudge completely the distinction between:

  • a deliberate lie, told with conscious knowledge that it is untrue; and
  • a statement that is misleading because the wording used is exaggerated, imprecise or incomplete.

That she wishes to fudge this distinction is clear from this paragraph at 35/98

Lies can be presented in different ways… there is the clear lie, which consists of saying something when one knows that it is not the case. But being misleading by concealing the truth can be just as effective …. the result is often the same’.

The fudging of this distinction is a problem for the credibility and integrity of her work. There is an immediate and serious distinction between the two offences. Neither are desirable, but the deliberate telling of a lie is at the highest end of the scale of moral turpitude for a professional. It is an entirely different and bigger problem than the issue of misleading the reader through careless or imprecise use of language.

I cannot then find any further attempt to distinguish between the ‘fabulation’ and the ‘lying’ strategy, but of course, whenever I am referred to this report by those of the Forced Adoption lobby, they invariably cite it as ‘proof’ that social workers routinely ‘lie’ to ‘win’ cases against parents.

The methodology of the report

Is curious to say the least. Arlin comments at 10/98 that ‘the examination of the material was not based on a critical investigative method. One important starting point in this work was not to form any opinion about whether the application for care with the backing of LUV was right or wrong’.

However, the material that she did examine did NOT include the actual application for the order to remove Anne from Elizabeth’s care and that ‘makes it impossible for me to check from where the original information was obtained’.

This makes a nonsense of the whole endeavour. Elizabeth Edner is clearly described in the papers as having serious historic problems with alcohol misuse. Her baby daughter was removed from her care when she was found drunk in charge of her. Attempts were made to keep mother and baby together at a family welfare clinic but Elizabeth absconded and the police had to be involved. Concerns about Elizabeth’s mental state and irrational and aggressive behaviour (including starting fires) continued and Anne remained in foster care.

If we haven’t actually established whether any or all of this is true then it makes a mockery of the exercise that Arlig then undertakes. Despite her starting point of not making any assumptions about whether the application for a care order was ‘right’ or ‘wrong’ she goes on to apparently conclude that it was ‘wrong’ judging from the sheer range and scale of the ‘persecution strategies’ that she finds in the paperwork that she does have.

Arlig is a wonderful example of the old saying – to the man with a hammer, everything is a nail. Her eagerness to identify such ‘persecution strategies’ is at times comical. One report about Elizabeth expresses concern that she has repeatedly telephoned the chairman of the social welfare committee at night, behaviour described as ‘desperate and boundless’. Arlig is able to identify from this concern [72/98]

… an antidemocratic strategy, since the committee members appear to have no office telephones and it is democratic right to contact politicians. The idea in the text appears to be that one should not make use of one’s democratic rights or act democratically in one’s own defence’.

Calling a local politician frequently, at night, presumably at their own home is hardly a convincing example of a rational exercise of one’s ‘democratic right’.

Arlig is entirely unconvinced that anyone should have had any concerns that Elizabeth described the police who tried to intervene after she locked herself in a room with Anne as coming in black clothes ‘like black witches’. This is explained [63/98] as ‘normal’ and simply an example of language as metaphor. Maybe. Maybe not. But I fail to understand how a social worker writing in a report that they found this reaction to the police troubling is automatically indulging in a ‘persecution strategy’.

Some good points

The tragedy about this report is that there are some good and useful discussions about the way in which social workers can and do present evidence in an unhelpful way. All legal practitioners will be sadly familiar with the social worker who exceeds his or her competence in offering for e.g., a diagnosis of a psychiatric condition, or is over confident in their opinions, or who has missed out some important piece of information that puts a parents’ behaviour in a clearer context.

I fully accept that there needs to be more understanding of how and why parents can react in ways which social workers perceive as aggressive or violent. I accept there needs to be more understanding of how the extreme stresses of child protection investigations very often can impact badly on parents and not allow them to present themselves consistently as ‘their best selves’.

But this report is not the way to go about it. The evidence presented about Elizabeth Edner is sadly clear. Accusing the social workers of adopting various deliberate ‘strategies’ against her to make their case is surely an argument that can only be made if there had been investigation of the primary facts – her alcohol misuse, her poor mental health – and those primary facts had been shown to be false or grossly exaggerated. Rather, the snippets of the investigation that Arlig cites appear to show a the compassion of the social workers, and their attempts to see things from Elizabeth’s perspective; recognising the stress that was upon her and how this might impact on her behaviour.

But the bottom line appears to be that this was a mother who put her daughter at immediate physical harm due to being drunk when responsible for her primary care. Arlig continually criticises the social workers for presenting a picture of Elizabeth Edner as an aggressive and mentally ill alcoholic – despite the clear information presented that this was actually what she was.

The sad irony is that a piece of work designed to show case the dangers of rhetoric is itself just another example of it.

EDIT: HHJ Horton’s judgment concerning Hampshire CC in November 2015 deals with what he calls an ‘exceptional’ case of deliberate lying on oath and alteration of reports by social workers. Let’s hope he is right about the ‘exceptional’ bit. 

The Relationship between the Children Act 1989 and the Mental Capacity Act 2005

What happens for children aged 16-18 in care proceedings who lack capacity?

The question of what is meant by capacity is dealt with in another post which looks at the MCA 2005 more generally. 

The MCA is intended to apply to adults who lack capacity – decisions about children should be resolved under the Children Act 1989.  A ‘child’ is a person aged under 18 years. However, it is clear that a number of provisions in the Children Act do not apply to children aged between 16-18 or apply only in ‘exceptional circumstances’.  A care order is one of these.

This reflects the growing autonomy of the ‘neuro-typical’ teenager who is highly likely to be ‘Gillick competent’ by the age of 16 years and thus able to make his or her own decisions about everything other than the most serious matters (refusal of life saving medical treatment for e.g.)

But what happens when you are dealing with a teenager who isn’t ‘neuro-typical’? Section 2(5) of the MCA 2005 provides that the powers of this Act apply in general only to people who are older than 16 years.  But sections 2(6) and 18(3) provide that powers under the Act could be exercised about property and financial affairs for a child whose lack of capacity would continue into adulthood.

If it is not a question of managing property or finances, section 21 of the MCA allows for transfer to and from the Court of Protection and the Family Court. Paragraph 3 of the Mental Capacity Act 2005 (Transfer of Proceedings) Order 2007 allows a court having jurisdiction under the Children Act to direct all or some of the proceedings in the family court to the Court of Protection where ‘in all the circumstances it is just and convenient to transfer the proceedings’.

Paragraph 3(2) sets out what the Family Court must think about:

  • whether the proceedings should be heard together with any other proceedings that are pending in the Court of Protection
  • whether any order that may be made by the Court of Protection is likely to be a more appropriate way of dealing with proceedings
  • the extent to which any order made about a child is likely to continue to have effect when the child is 18
  • Any other relevant factors

Help in understanding what could be another a ‘relevant factor’ is found in the judgment of Hedley J in the case of B (A Local Authority) v RM, MM, and AM [2010] EWHC 3802 (Fam). He posed the following questions:

  • Is the child over 16 years old – the MCA can’t apply otherwise
  • Does the child clearly lack capacity to understand the main decisions in the Children Act proceedings
  • Is this lack of capacity due to life long or at least long term disabilities
  • Can all the decisions that need to be made about the child’s welfare be resolved during the child’s minority?
  • Are the powers of the Court of Protection more appropriate to resolve problems that the powers under the Children Act
  • Can the child’s welfare needs be fully met by the Court of Protection

Continued involvement of the Children’s Guardian

A further practical consideration is that transferring a case from the Family Court to the Court of Protection is likely to lead to the children’s guardian dropping out of proceedings, unless the Official Solicitor (who would then represent the child) agreeing to re-instruct the guardian as an independent social worker. This would clearly be a pretty cumbersome procedure. There will also be implications for continuing public funding for the parents if the matter transfers entirely to the Court of Protection; their continued ability to benefit from legal aid will be subject to a means and merits test.

A solution to this problem would be to continue the care proceedings but at the final hearing, adopt the approach set out in Re B above and ask the Judge to also sit as a Court of Protection judge in order to make the appropriate declarations about the child’s capacity and any orders under section 16 of the MCA to promote the child’s welfare.

 

Further Reading

The woeful state of our debate Part IV – Cascading the judgment in Re N

This is a post by Sarah Phillimore

On November 2nd, ironically as I attended a workshop on cross-border child protection issues, I received an email with the judgment in the case of Re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112. This was a judgment from a hearing heard at the end of March 2015 but only now did it ‘cascade’ throughout our legal ranks.

The judgment covers a wide range of already familiar territory on matters of jurisdiction in care proceedings involving children from other countries. When the case was emailed I wondered if it was merely coincidence that this wider ‘cascading’ occurred just before the European Parliament Petitions Committee were to conduct their ‘fact- finding’ mission in London:

The Committee on Petitions is organising a Fact-finding visit to London on 5 – 6 November 2015. The aim of the visit is to meet authorities, practitioners (lawyers, social workers) and other stakeholders to exchange views on the petitions related to interventions by the UK authorities on issues of parental responsibility and allegedly abusive decisions on adoption as well as the placing of children in foster care without the consent of biological parents.

When I read Re N I saw that it was unlikely to be coincidence; this judgment appears to be a deliberate attempt to explain the practices and procedures of our court and I assume was thus ‘cascaded’ at this time for the benefit of the Petitions Committee. As the President comments at paras 4 and 5 of his judgment:

During the hearing of these appeals, the issues have broadened, and we have necessarily had to consider a number of very basic but nonetheless fundamentally important issues to do with the application of our domestic adoption law in cases with a foreign element. This judgment is therefore both wide-ranging and in consequence lengthy, as has been its preparation. This has, most unfortunately, led to even more delays in a case that has already been unduly delayed. I am very sorry.

Since our judgments may be read by those not familiar with our domestic constitutional arrangements, I should explain at the outset that within the United Kingdom of Great Britain and Northern Ireland (what for ease of reference I shall call ‘the United Kingdom’) there are three quite separate legal jurisdictions: England and Wales (which for ease of reference I shall call ‘England’), Scotland and Northern Ireland. We are sitting as judges of the Court of Appeal in England, applying, in addition to the relevant international obligations of the United Kingdom, the domestic law of England.

I am a little taken aback that the parties in this case thus presumably had to wait 7 months for the judgment in this case so that it could also stand as an ‘Introduction to Care Proceedings’ for our European brethren.

I certainly don’t dispute the need for greater clarity about what we do in the family courts and why we do it but why should the vehicle for this educative mission be a judgment in a case involving children? Matters concerning children should be resolved with the least possible delay.   If matters really need spelling out for the European Parliament, hasn’t that already been done in the report of Dr Fenton-Glynn? 

My unease is compounded by what the President then goes on to say about section 20 accommodation from paragraph 157 onwards. in his eagerness to show that we are putting our house in order with regard to the abuse of this section we now appear to have lost a useful and pragmatic mechanism to take some of the heat out of care proceedings.

It was common practice, when a LA was worried about a child returning to live with parents but the parents would not or could not agree to an interim care order, that the parents would consent to section 20 accommodation but agree that they would not exercise their right to remove their child without giving a period of notice, for example 2 weeks. This was a workable compromise which kept the child safe without pushing the parties into an early adversarial battle about whether or not an ICO should be made.

The President says this at para 169:

This is related to the fourth problem, the seeming reluctance of local authorities to return the child to the parent(s) immediately upon a withdrawal of parental consent. It is important for local authorities to recognise that, as section 20(8) of the 1989 Act provides:

“Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section.”

This means what it says. A local authority which fails to permit a parent to remove a child in circumstances within section 20(8) acts unlawfully, exposes itself to proceedings at the suit of the parent and may even be guilty of a criminal offence. A parent in that position could bring a claim against the local authority for judicial review or, indeed, seek an immediate writ of habeas corpus against the local authority. I should add that I am exceedingly sceptical as to whether a parent can lawfully contract out of section 20(8) in advance, as by agreeing with the local authority to give a specified period of notice before exercising their section 20(8) right.

Because of this judgment, I have already had to have conversations at court about whether or not the LA needed to apply for an ICO given the doubt now cast on the legitimacy of allowing parents to agree to a ‘notice period’ before withdrawing their consent to section 20.

This is potentially a very unhappy position to be in. The President may well be right that the parent cannot lawfully contract out of a statutory provision BUT the signing of such an agreement must surely mitigate against any later accusations that the LA have committed a crime! If the parties to care proceedings are not encouraged to make these kind of sensible and pragmatic ‘holding’ arrangements then what we are inevitably looking at is more contests at an early stage, more pushing parties into adversarial positions, more ‘findings’ being made at shorter hearings. The impact on the court lists will be obvious and severe.

As I keep saying (because it seems very few are listening) we will not solve the problems in our current system by demonising local authorities and those who work there. Is it not possible to point out problems without creating more? Judgements from our courts should not be delayed by many months in order to play to an audience far wider than our own jurisdiction. We are surely entitled to a system that we do not have to keep continually defending.

LATER THIS EVENING EDIT

I understand better the President’s anxiety to make sure his views are heard, when I remind myself who is discussing these issues with the European Committee.

 

 

FURTHER EDIT THIS MORNING

John Hemming confirms what he has been saying to the European Parliament. When a debate is predicated on the ‘immorality’ of a system, then hope of a constructive debate is seriously diminshed.