Author Archives: Sarah Phillimore

The LA tell me my child should be in foster care

What is foster care?

Under the Children Act 1989 section 22C, if a LA is ‘looking after’ a child – i.e. that child is either subject to a care order or the parents have agreed the LA should find the child a home under section 20 of the Children Act – the LA must arrange for the child to live with either:

a parent;
someone who has parental responsibility
or someone who has a child arrangements order that states the child should live with him or her.

BUT if that isn’t possible, either because it is not ‘reasonably practicable’ OR would not be consistent with the child’s welfare then the LA must put the child in ‘the most appropriate placement available’ (see section 22C(5). These ‘appropriate placements’ are listed as:

placement with a person who is a relative or friend or otherwise connected with the child and who is also a LA foster parent
placement with a LA foster parent
placement in a children’s home
any other placement which complies with regulations.

LA Foster Placements

Under the Children Act 1989 Section 22C(6), one option for a ‘looked after’ child is to go to a LA foster parent. A LA foster parent is defined as a person who is approved under regulations made by virtue of paragraph 12F of Schedule 2 of the Children Act 1989.

These regulations in England governing such placements are the Fostering Services (England) Regulations 20112 as supplemented by the Care Planning, Placement and Case Review (England) Regulations 2010.

Therefore, the LA may only place a child with a foster carer if the foster carer has been approved in accordance with the regulations, and the foster carer has entered into a foster care agreement either with the LA or with another fostering service provider.

The LA must continue to monitor the child’s welfare and visit the child at the foster home.
Emergency and temporary placements with LA foster parents may only be made in accordance with and for the time specified in the regulations.

Ending a foster placement

A LA which has arranged the placement of a child must not end the placement without carrying out a review, unless there is an immediate risk of significant harm to the child or the placement must end to protect the child or others from serious injury.

Duty of LA to promote contact with child in foster care

If the child is subject to a care order then the LA must provide ‘reasonable contact’ under section 34 of the Children Act 1989. If the parents have agreed to the foster placement, the LA has a duty to promote contact between the child, parents and other connected people unless this would not ‘reasonably practicable’ or not in the child’s best interests. Parents also have a duty to keep the LA informed about where they are living. See further Schedule 2 para 15 of the Children Act 1989.

Private Fostering

A ‘privately fostered child’ for the purposes of the Children Act 1989 section 66 is a child who is under the age of 16 years and who is cared for, and provided with accommodation in their own home, by someone other than:

a parent
a person who is not a parent but who has parental responsibility
a relative.

A child is not a privately fostered child while he is being looked after by the local authority or if the person caring for and accommodating him has done so for less than 28 days and does not intend to do so for any longer.

There is also a detailed list of exemptions to the definition at the Children Act 1989 Sch 8 paras 1-5. In the case of a child who is disabled, the definition extends to a child who is under the age of 18 years.

Private fostering is regulated by Part IX of the Children Act 1989. The LA are under a duty under section 67 of the Children Act to make sure that children in their area who are privately fostered are being properly looked after. Some people are disqualified from being private fosterers, for e.g. those people convicted of certain criminal offences. You will need to get written permission from the LA to be a private foster carer in these circumstances.

If you want to foster a child privately must give written notice to the LA of the proposal at least six weeks before the private fostering arrangement is to begin. Where the private fostering arrangement is to begin within six weeks, the LA must be informed immediately.

Fact Finding in Care Proceedings

What is meant by a ‘fact finding hearing’ ? What does the Judge have to do? What needs to be proved? This post appears at the Children In Law website, curated by barrister Jacqui Gilliat. This summary of the law relating to fact finding hearings was written DJ Simmonds at the Central Family Court in London, in collaboration with HHJ Hess.

The law relevant to fact finding hearings in care proceedings can be summarised as follows.

I should have in the forefront of my mind the provisions of Articles 6 and 8 of the ECHR. In particular it is important that I ensure that any person who might be affected adversely by my judgment, for example by being in the pool of possible perpetrators, has had the opportunity to be represented within the proceedings and been able to put their case.

The fact finding decisions need to be made in the context of the provisions of Section 31(2) Children Act 1989, the “threshold criteria”. This section reads:-

“A court may only make a care order or supervision order if it is satisfied –

that the child concerned is suffering, or is likely to suffer, significant harm; and that the harm, or likelihood of harm, is attributable to …the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him.

“Harm” is defined in Section 31(9) as meaning “ill-treatment or the impairment of health or development”.

The relevant date for assessing whether the child “is suffering” harm is the date of the care order application or, if temporary protective arrangements have been continuously in place from an earlier date, the date when the arrangements were initiated. In cases where the “is suffering” limb of the test is engaged (as in the present case) it is not enough that the court suspects that a child may have suffered significant harm or that there was a real possibility that he did, the court must be satisfied that the child was actually harmed: Re M (A Minor) (Care Order: Threshold Conditions) [1994] 2 FLR 577.

Burden and Standard of Proof

The burden of proof lies on the party who makes the allegation, in this case the local authority.

The standard of proof is the balance of probabilities: 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”.

Binary system – it either happened or it did not happen

If a fact is to be proved the law operates a binary system. It is open to the Court to find on the balance of probabilities either that an allegation is true or that an allegation is false. As Lord Hoffman observed in Re B (supra) : “if a legal rule requires the facts to be proved a judge must decide whether or not it happened. There is no room for a finding that it might have happened; the law operates a binary system in which the only values are nought and one”.

Evidence not speculation

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”.

One part of the assessment is an analysis of the credibility and reliability of the witnesses and potential perpetrators. I need to remind myself, though, of the important warning to be derived from 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 Evidence

Where, as here, an important part of the evidence is provided by expert witnesses I need to remind myself of two propositions in weighing the importance of that evidence. 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 ultimately 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. [But note comment about ‘blind-siding’ below in Further Reading].

Secondly, the court should always remember that today’s medical certainty may be disregarded by the next generation of experts and that scientific research may one day throw light into corners that are at present dark. There may be cases where criticism of even a clear expert opinion is more than fanciful. The case of LB of Islington v Al Alas and Wray [2012] EWHC 865 (Fam) is a useful cautionary tale in this respect. 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”.

When a child has suffered injury

In structuring my analysis in this fact finding hearing I remind myself of the Supreme Court decision in Re S-B (children) (non-accidental injury) [2009] UKSC 17. This decision informs the structure of the analysis, broadly encouraging the route set out below.

If I am satisfied that the child sustained injuries I must first consider whether they were caused non-accidentally. In this context I remind myself 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).

Secondly, I must next consider whether I can identify the perpetrator of the injuries. A Court should not strain to identify the perpetrator, but to do so should promote clarity in identifying future risks to the child and the strategies necessary to protect the child from them and there should be long-term benefits for the child in knowing the truth if it can be ascertained. Plainly, the threshold criteria 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, and for the consideration of a child’s welfare, it is desirable to identify who has and who has not caused the injuries.

Thirdly, if I cannot identify a perpetrator or perpetrators, I should attempt to identify the pool of possible perpetrators. In this context I remind myself of the decisions in 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 fulfil the ‘attributability’ criterion – for example if the harm has been caused by someone outside the home or family, for example at school or in hospital or by a stranger, then it is not attributable to the parental care unless it would have been reasonable to expect a parent to have prevented it. It is also generally desirable to identify a pool of perpetrators because it will help to identify the real risks to the child and the steps needed to protect him, it will help the professionals in working with the family and it will be of value to the child in the long run. In considering whether a particular individual should be within the pool of possible perpetrators the test is not whether that individual can be excluded as a perpetrator, but whether there is a real possibility that he or she was involved. An individual should not be expected to prove his or her innocence beyond reasonable doubt.

Fourthly, if I identify a pool of possible perpetrators which, ex hypothesi, will include more than one person, I should be cautious about expressing a 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”.

Bristol Family Law Class October 1st 2015

Sarah Phillimore attended the Family Law Class at Bristol CJC on 1st October 2015.

HHJ Stephen Wildblood QC

This conference is the first of its kind. It is open and reportable for the public. It is not possible to speak about family law without touching very raw nerves or on topics that are controversial. Please don’t disrupt the conference. If this fails, it is highly unlikely any others will be held. What we are doing is being observed by many people. Part of our aim is to make the family court system as transparent as possible. We hope you will feel this is important as first of its kind and recognise our good intentions. You are only hearing from me for a short while. I am Stephen Wildblood the Designated Family Judge (DFJ). I have responsibility for the family justice system in five counties including Bristol.

Justice has got to be accessible. People must understand what it is – how to come to court and the process that is in effect. We serve the community and the community must know what we do. We want to outline help that is available. We have developed a unique system in this court – we want you to know about it. You don’t get many judges, barristers, academics to face the public and deal with questions they don’t have advance notice about.

This is reportable conference. People may write as they see fit. I don’t tell you what to say about it. People have their own views.

We can’t discuss what we think the law should be. Its not our opinion that matters. Our intention today is to give you information. I have to uphold the law as it is. We cannot discuss specific cases.

Advice – don’t come to court. I am up at 6am and work until 10pm – midnight. Workload is increasing month on month. Working flat out. Private and public law cases up. We are getting many more litigants in person. That is a particular feature to explain why we are organising conferences like this.

Variety of cases we deal with – not all ‘Baby P type monsters’ – vulnerable people.
Private law – custody and access now child arrangements.
Public law – care
Relationship breakdown – divorce

Judi Evans
Great to see so many people interested in family law. People dealing with very emotional subject matter and have to get to grips with terminology. I will help you understand that. Private law cases are brought by one of the parents.
Child arrangements orders – used to be custody and access, then residence and contact. Name changes again. Who the child lives with or spends time with.
Change of surname. Permission to take abroad.

How are private law cases decided? – Welfare checklist of Children Act 1989.
People are actively encouraged NOT to come to court. No order principle. If parents can agree, they are the ones that should be making the decisions.

Where should a child live? No presumption in favour of mother – legislation is gender neutral. No presumption about amount of time child spends with either parent. Looking at parental responsibility.
Should all parents have PR, married or not.
There should be an effective relationship with both parents unless exceptional reasons why not. Many forms of contact between children and parents. Direct, indirect, overnight, or visiting.
Mediation – will be encouraged to reach a solution.
Cafcass – try to help parents reach agreement.
Enforcement – decision embodied in court order. But we want to encourage you to make your own decisions about your child.
SPIP – Separated Parents Information Programme – to understand impact on children of relationship breakdown

Zahid Hussain
Public law – the available public law options. Supervision, care and placement orders. Range of orders – least intervention to greatest.
How difficult are these cases? – Very. No case is the same. Each case represents its own challenges for each individual. Court assisted by professional evidence.
Parents participate fully in proceedings and give evidence. Court makes final decision and may disagree with SW and guardian.
What is more serious than an order placing a child for adoption? Stirs a lot of emotion.
Nature law and common sense require it is recognised that best place for child is with natural parent unless proved otherwise.
Test of significant harm and link between that and care provided by parents.
Threshold criteria. Sets out what harm must entail. Standards of parenting vary. Court is not one of social engineering. Even if significant harm is found, court does not necessarily make a care order.
Important to look at what support can be provided. The LA expected to file a care plan which will set out proposals for plan for child.
26 week time limit – since 22nd April 2014 last year, care proceedings should be concluded without delay and within 26 weeks unless good reasons. It is maximum.
Major issues – some LA don’t bring cases swiftly enough. Section 20 accommodation lasting too long.

Louise Tickle: What can I report about – very little. Not generally allowed to report on detail of dispute. Can apply to the Judge to lift the restrictions. In the moment I am in the process of making that application. Judges can decide to hear a case in open court but doesn’t happen very often.

Things don’t change much after case concluded but not enough to interest most media in reporting. Can’t report detail.

Emma Whewell of UWE talking about relationship breakdown. Sometimes court has to decide who is a parent. Division of financial assets etc. She details the resources available for parents and other litigants in person.

Then some practical advice from Judi Evans and HHJ Wildblood QC – be prepared! Consider what witnesses and documents you need in advance. If you are tired and want a break ask for one! remember that orders are orders and not invitations for a discussion. Remember that appeals are rare – only when judge gets things wrong.

Feedback invited.

Discussions with audience

What percentage of wrong decisions are acceptable? – HHJ Wildblood: none. The burden on Judges is huge. You are making the most serious order you could possibly make. Taking child away from parents. You are legitimising child into another family. Consequences for the rest of the child’s life and you will materially effect child’s natural family. I get at least one application a month where someone is saying I want to see my adoption file – but my parents’ adoption file!

Know thyself – we all want to know where we come from and who we are.

How many mistakes are acceptable – none. Like how many mistakes are acceptable in surgery. They happen but not acceptable.

Several clients of the PSU say if they had known about stresses of litigation, they would not have started. Should court survey litigants to find out what further education required? – HHJ WQC: One of things you don’t get as a Judge is feedback. That’s why I am keen to do conferences like this. Open forum encourages Judges to hear what other people think and force us to think more deeply. External feedback is so valuable.

PSU volunteer – people are hugely effected by way they are treated in court process. They want a fair hearing. Have you done a survey of your users?

HHJ WQC – there has been research. Suggestion that people are more concerned about fairness in process. Then more prepared to accept outcome. That has limitations. People are also concerned about outcomes – if child adopted against your wishes. The ultimate result is thing of greatest import. I accept process must be fair. My view that both system and outcome must be fair.

Julie Haines – criticisms can be put in skeleton argument and preamble in grounds of appeal. That is why a lot of parents want to appeal – they want Court of Appeal to know what is happening in court room. Refreshing to see your criticism of some failures of LA. whole raft of things that Court of Appeal gets to hear about. A useful exercise. Parents don’t want to ever give up.

HHJ WQC – when its got to permission to appeal, things have gone wrong already. I have stopped a case and referred parents to a support group. Case stopped at next hearing and LA withdrew. Please make use of support. Very important that system seen as fair and humane.

Question – Concern that parents’ solicitors are advising parents not to contest at ICO and wait until final hearing. parents don’t feel knowlegeable enough to overrule representation.

Judi Evans – very difficult to make a generalised comment about that. Can’t trespass on individual cases. Test for ICO is lower – if you embark on interim hearing, findings will be made.

Zahid Hussain – ICO should be seen as a ‘neutral holding order’ shouldn’t give one side advantage.

HHJ WQC – ICO with removal – Judge must be satisfied child’s safety demands immediate separation. Can’t overlook impact on young mother. She agrees ICO and by FH she may have given up hope. They are not lightly made, I don’t make them lightly. Very astute to effect they may have. I do apply test set down by law. You may be able to find mother and baby placement. I try to keep children with parents if possible. If its not possible… point about not having full blown hearing at interim stage, it would be very prejudicial. If something is not proved it is treated as not happening. We are not a court of tittle tattle. No smoke without fire is the adage of an idiot.

If people give evidence on oath and it is found to be false, that could lead to prosecution for perjury. Family court does not treat evidence lightly. It applies across the board. Applies to LA witnesses as well. Anyone who gives false evidence will be in serious trouble.

Question – problem of drift of section 20. there are problems but in some circumstances it works very well.

See Further

Family Court information – advice website for families in Bristol, Bath, Weston and Gloucester area.

The Way We Are – accessing the court after LASPO – article by HHJ Wildblood QC looking at the recent initiatives in Bristol to improve access to the family courts.

Has the child’s welfare pendulum swung too far – are Parents’ rights disregarded?

We are grateful for this guest post by contributor and parent Maya Birdwood-Hedger.

The current state of the law is probably best summed up by Re B (A child) [2009] UKSC . In summary, the court held that it is only as a contributor to the child’s welfare that parenthood assumes any significance. Have we gone too far in our focus on the welfare of the child and the child alone as the issue of paramount concern? Can the interests of parents and children be so easily distinguished?

Introduction – what is meant by parental rights and responsibility?

Lord Steyn, writing extra-judicially, said: “A constitutional democracy must protect fundamental rights. It is morally right that the state, and all who act on its behalf in a broad functional sense, should respect the fundamental rights of individuals. Without such a moral compass the state is bound to treat individuals arbitrarily and unjustly.” [Lord Steyn – quoted in Brayne and Carr. Law for social workers/ 10th edition/ Oxford: Oxford University Press, 2008, 75]
Bainham and Gilmore ask two separate (albeit connected) questions:

is it possible to identify independent interests which parents have in relation to their children?
If so, should the law recognise and accommodate these? [Bainham and Gilmore/ Children – the Modern Law/ Fourth edition/ Bristol: Jordan Publishing Limited, 2013, 328]

To answer the first question, they quote philosopher David Archard:

Being a parent is extremely important to a person. Even if a child is not thought of as the property or even an extension of the parent, the shared life of a parent and child involves an adult’s purposes and aims at the deepest level… parents have an interest in parenting – that is, in sharing a life with, and directing the development of their child. It is not enough to discount the interests of a parent in a moral theory of parenthood. What must merit full and proper consideration is the interest of someone in being a parent.[ Archard/ Children, Family and the State/ Ashgate 2003, 94]

Although the second question is more difficult to answer, given the current commitment of the law to the welfare of children, Bainham and Gilmore say that there are at least two good reasons why the law should recognise the interests of parents:

once parentage is established, very wide-ranging and extensive burdens are placed by the law on the parents – financial, emotional and practical. Moreover, these responsibilities last for 18 years and longer than that if more than one child is involved.
Secondly, the law needs to reflect the reality of everyday life.

The honest position is that parents do not, and are not required, to act at all times with their children’s interests paramount in their minds. It would be far better for this to be transparently and openly acknowledged rather than to act out a pretence that only children’s interests count.[ Bainham and Gilmore/ Children – the Modern Law/ Fourth edition/ Bristol: Jordan Publishing Limited, 2013, 329-330]

Herring distinguishes three different forms of parental rights:

Parents’ human rights, the rights that parents have as human beings, e.g. a right to free speech. These rights include those protected by the Human Rights Act 1988.
Parents’ child-centred rights. These are the rights that are given to parents in order to carry out their parental obligations, e.g. to clothe, feed and house the child.
Parents’ parent-central rights. Here Herring refers to law professor and author Alexander McCall Smith who explains that parent-centred rights are given to parents not specifically to further the welfare of the child but to reflect the interests that parents have in bringing up their children in the way they wish. An example of this may be religious upbringing. Here it may be impossible to prove that one particular form of religious upbringing promotes a child’s welfare better than any other or no religious upbringing. The right of a parent to involve their child in religious practices does not necessarily reflect the welfare of a child, but rather promotes the interests of the parent to raise the child in accordance with the parent’s religious beliefs. These parent-centred rights could be said to further society’s interests as well in that children are brought up to have different beliefs, interests and lifestyles, thus contributing to a culturally diverse and rich society[Herring, Jonathan / Family Law/ London: Routledge, 2012, 145; McCall Smith, Alexander (1990). Is anything left of parental rights? In Sutherland and McCall Smith Family Rights: Family Law and Medical Ethics/ Edinburgh: Edinburgh University Press.]

Historic developments

As Sawyer explains, “children were historically useful as labour or as a source of income by being hired elsewhere” [Sawyer, Caroline/ Children’s Representation by Their Parents/ in Responsible Parents and Parental Responsibility/ Oxford: Hart Publishing, 2009: 228] but gradually a growing perception that parents did not always know or do what was good for their children did lead to the idea of children having their own place in the legal process.

According to Hendrick (2005), the Children Act 1948 heralded a new approach to parent-child relationships, which encouraged the newly established Children’s Departments “to view children with individual human beings with both shared and individualised needs, rather than an indistinct mass.” Thereafter the parents did not formally appear during care proceedings, but effectively exercised their legal right of representing their children in the proceedings. Soon after the Adoption Act 1949 allowed adopting children without their parents’ consent on the basis that the parents were unreasonably withholding their consent. [Adoption of Children Act 1949, s.3 (1)]

The further shift appears to have happened with the death of Maria Colwell in 1973: her mother and stepfather successfully argued she should return home to them, and then the stepfather killed her. Following that case, section 64 of the Children Act 1975 provided that children in care would be represented by professional Guardians ad Litem – trained social workers. Further on, the 1989 Children Act provided that the court should appoint a guardian ad litem for the child in all “specified” (broadly speaking, public law) proceedings unless it was satisfied that the child’s welfare would be adequately safeguarded without one [Children Act 1989, s 41].

The duty of the social worker to balance between children’s and parents’ rights was established even more firmly in the report by Martin Narey for the Times newspaper: it was proposed to give greater prominence to adoption in social work training so that social workers’ role is seen as unequivocally that of protector of the child rather than friend of the family [The Narey Report on Adoption: Our Blueprint for Britain’s Lost Children. /The Times. July 5, 2011.]

The Children Act 1989

There is recognition that The Children Act 1989 represents the philosophy of its time, i.e. it “ostensibly put the child at the centre of all proceedings about the family”. [Sawyer, Caroline/ Children’s Representation by Their Parents/ in Responsible Parents and Parental Responsibility Oxford: Hart Publishing, 2009: 228.]

Section 1(1) of the Children Act provides that “the child’s welfare shall be the court’s paramount consideration.” Bainham and Gilmore question if paramountcy can actually survive the Human Rights Act 1988. [EDIT – It has: see this article by Claire Fenton Glynn] They reiterate that adult rights to respect for private and family life must be respected and must not be interfered with unless the specific justifications envisaged by Article 8(2) exist and only when they are necessary and proportionate to a legitimate aim. [Bainham and Gilmore/ Children – the Modern Law/ Fourth edition/ Bristol: Jordan Publishing Limited, 2013, 62-63]

Below we will consider some situations where courts can interfere in family life.

Private law orders

According to Wallbank (who used the 2004 data), only 10% of parents sought help from the courts to resolve issues regarding post-separation arrangements concerning children. [Wallbank, Julie/ Parental Responsibility and the Responsible Parent: Managing the ‘Problem’ of Contact/ in Responsible Parents and Parental Responsibility Oxford: Hart Publishing, 2009: 304] The numbers may have plummeted further, following the Legal Aid, Sentencing and Punishment of Offenders Act 2012 removing legal aid for most private law cases. [Baksi, Catherine/ Family lawyers sound alarm on separating parents/ The Law Society Gazette, 14.08.14]

Section 8 of the Children Act 1989 sets out and defines three orders, known as “s 8 orders” and regulating the exercise of particular aspects of parental responsibility while leaving parental responsibility itself intact. The “child arrangements order” replaces the old ‘residence’ and ‘contact’ orders following the 2014 Children and Families Act. This allows the courts to address the practicalities of with whom the children will live or have contact. A “prohibited steps order” allows the court to prohibit the exercise of certain aspects of parental responsibility while a “specific issue order” to determine a specific question.

Section 11 of the Children and Families Act 2014 provides a presumption that the involvement of a parent in a child’s life will further the child’s welfare, unless the contrary is shown. ‘Involvement’ means ‘involvement of some kind, either direct or indirect, but not any particular division of the child’s time’ [CFA 2014 s 11(2)(2B)]

The extent to which the legal system should promote shared parenting has been the subject of considerable debate. Fathers’ rights organisations have been campaigning against the “social catastrophe” of fathers not being allowed access to their children. [Fathers4Justice campaigner jailed for defacing Queen’s portrait. The Guardian, 05.02.14] There is, however, some evidence that shared parenting may be an independent risk factor for younger children as well as those who become caught between parents in high conflict. [Bainham and Gilmore/ Children – the Modern Law/ Fourth edition/ Bristol: Jordan Publishing Limited, 2013, 224.]

Commonly used orders in public law

This section looks at the range of orders the court can make in the course of care proceedings.

Emergency protection order

Under this order the court may remove a child from the household if there is reasonable cause to believe that the child is likely to suffer significant harm if—

(a) (i) He is not removed to accommodation provided by or on behalf of the applicant; or

(ii) He does not remain in the place in which he is then being accommodated;

(b) (In the case of an application made by a local authority—

(i) Enquiries are being made with respect to the child under section 47(1) (b); and

(ii) Those enquiries are being frustrated by access to the child being unreasonably refused to a person authorised to seek access and that the applicant has reasonable cause to believe that access to the child is required as a matter of urgency. [Children Act 1989, 44(1)]

In X Council v B (Emergency Protection Orders) [2004] EWHC 2015 (Fam), [2005] 1 FLR 342 Munby J (as he then was) reiterated the stringent nature of the obligation on the local authority when considering protective measures to comply with the obligation for procedural fairness and to respect the Article 8 right of the family generally and the parents in particular. The guidelines are that “save in wholly exceptional cases, parents must be given adequate prior notice of the date, time and place of any application by a local authority for an EPO. [X Council v B (Emergency Protection Orders) [2004] EWHC 2015 (Fam), [2005] 1 FLR 342]

Care and Supervision Orders

On the application of the Local Authority or the NSPCC the court can consider making either order if the provisions of section 31 of the Children Act 1989 are made out. This requires the judge to be satisfied that a child has suffered or is at risk of significant harm. Under the Care Order the Local Authority obtains parental responsibility for the child. [Children Act 1989, 33 (3)] Although de jure the parents also retain parental responsibility, in reality it allows them little more than the right of consultation.

While a supervision order is in place, it allows the Local Authority “to advise, assist and befriend the supervised child”. [Ibid. 35 (1) (a)] However, if the parents refuse to comply with the supervision order, the Local Authority is likely to apply for a care order, even if the parents maintain that they are capable to look after their children without supervision or support. That becomes apparent in the judgement by Mrs Justice Parker:

Throughout these proceedings it has been the father’s view that he can cope; he can be trusted; in deciding to make sure the support is there. He is opposed to the role of the local authority; and he says that their anxiety to check that all is well with the children is misplaced because it is totally unnecessary. But the local authority has statutory duties in respect of all children in need and particularly children who are the subject of proceedings. [Hertfordshire County Council v F & Others [2014] EWHC 2159 (Fam) (23 May 2014), para 9]

In this case the application to remove the child was made because the Local Authority was concerned about the father preventing them from supervising the child. One can then argue that the needs of the child to be supervised by the Local Authority were viewed by the court as superior to the parents’ right to care for their own children.

In the case above the child was placed in the care of the Local Authority. The family then had another baby who was taken into care on the interim care order shortly after birth. The father was later criticised by the judge for not having given the baby a first name. The judge believed it was emotionally harmful not to give a child a name. The father is this case is a British Indian and a devout Hindu. The parents were anxious to have their child named according to Hindu tradition, which involves a temple ceremony, Namakarana, which only the parents, close family and friends can attend. But the social workers insisted that they be present, lest the family “abduct” the child. [Booker, Christopher. The real story of the ‘baby with no name’/ In The Telegraph, 31.05.14]

Here one can see an apparent conflict between the rights of the parents and the rights of the child: the child has a right to be named. The parents have the parental duty to name their child, but also the right to name him in a ceremony, compatible with their religious and cultural beliefs. In this case they were not allowed to exercise that right, but the judge was more concerned with their failure to fulfil their parental responsibility.

The Placement Order

This order allows the Local Authority to place a child for adoption with potential adopters chosen by them. After the placement order is made, the Local Authority will implement a gradual reduction in contact between the parents and the child. Once a placement has been identified, the birth parents will usually be offered a final contact with the child, sometimes euphemistically described as a “wishing you well” contact and sometimes more accurately described as a “goodbye” contact. The majority of parents can expect no more than “letterbox” contact once the child has been placed. [Bainham and Gilmore/ Children – the Modern Law/ Fourth edition/ Bristol: Jordan Publishing Limited, 2013, 677.]

The “goodbye” contact is understandably traumatising to both parents and children, but, when the parents cry, they can get criticised for “emotional abuse”. [Craig, Olga. Stolen by the state: A story of love and loss that’ll make you seethe – a mother falsely accused of abuse reveals her relentless hunt for her three babies. In the Mail on Sunday, 06.06.15]

Once the child has been placed with the prospective adopters and lived there for at least ten weeks, they can apply for the Adoption Order to be made. One of three conditions under section 47 of the Adoption and Children Act 2002 must be satisfied before the court may make an adoption order.

The first condition is that, in the case of each parent or guardian of the child, the court is satisfied—
(a) that the parent or guardian consents to the making of the adoption order,
(b) that the parent or guardian has consented under section 20 (and has not withdrawn the consent) and does not oppose the making of the adoption order, or
(c) That the parent’s or guardian’s consent should be dispensed with.
(3)A parent or guardian may not oppose the making of an adoption order under subsection (2) (b) without the court’s leave.

(4)The second condition is that—
(a) the child has been placed for adoption by an adoption agency with the prospective adopters in whose favour the order is proposed to be made,
(b) Either—
(i) the child was placed for adoption with the consent of each parent or guardian and the consent of the mother was given when the child was at least six weeks old, or
(ii) The child was placed for adoption under a placement order, and
(d) No parent or guardian opposes the making of the adoption order.

The question of dispensing with parental consent has been at the heart of the conflict between what professionals view as “the best interests of the child” and the fundamental rights attached to the relationship of parent and child. While parents might understand that they are unable to look after a child themselves and may be prepared to have the child looked after by other people, they might not be willing to accept the complete termination of their legal relationship with the child. Traditionally English law has viewed this as a question which involves the rights of parents and has made provisions, through the statutory consent requirements, for the proper accommodation of those rights. The major change brought about by the 2002 Act is that the welfare of the child has, controversially, been put centre stage. This has led to legitimate concerns about what has happened to the rights of parents and may give rise to challenges under the ECHR. [Bainham and Gilmore/ Children – the Modern Law/ Fourth edition/ Bristol: Jordan Publishing Limited, 2013, 688.]

Section 52 (1) of the Adoption Act 2002 has abolished all the previous grounds for dispensing with parental consent except for one and has replaced them with the welfare principle:
The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that—

the parent or guardian cannot be found or is incapable of giving consent, or
the welfare of the child requires the consent to be dispensed with.

The second condition is now the major ground for dispensing with parental consent. It raises the serious question of what weight, if any, is to be given to parental interests or rights in preserving their legal relationship with the child. It becomes clear that if the court’s view is that adoption is in the child’s best interests, then whether or not the parent is behaving reasonably in objecting to this will have no bearing on the decision. [Bainham and Gilmore/ Children – the Modern Law/ Fourth edition/ Bristol: Jordan Publishing Limited, 2013, 689]

When a parent endeavours to oppose the making of the adoption order at that stage, they have to clear three fences which can be seen to be progressively higher fences. The first is to establish the necessary change of circumstances. The second is then to satisfy the court that, in the exercise of discretion, it would be right to grant permission. The third and final stage would of course be to persuade the court at the opposed hearing to refuse the adoption order and to reverse the direction in which the child’s life has travelled since the inception of the original public law care proceedings. [Borough of Poole v W & another [2014] EWHC 1777 (Fam), para 8]

In paragraph 24 of the judgement quoted above the judge recognised that the parents had demonstrated “a commitment to the child which entitles them to have their wishes and feelings considered” yet was concerned whether the child in question would “survive the process of rehabilitation” to her parents’ care. On balance, the judge decided to make the adoption order, concluding:

In making the order which, in my judgment, promotes the welfare of SR, I fully recognise the grief of the parents who do not share my view and I recognise that I have no comfort to offer them, beyond letterbox contact. If ever an example was needed of how legitimate and heartfelt aspirations of parents can be trumped by the welfare needs of the child, this surely is it.

Adoption order

Section 67 (1) of the Adoption Act 2002 provides that “an adopted person is to be treated in law as the child of the adopters or adopter”. Adoption thus terminates existing parental responsibility and transfers it to the adoptive parents; it also terminates the very legal relationship of parent and child. The effect of adoption was recently described by a Supreme Court Judge Lord Wilson as “an act of surgery which cuts deep into the hearts and minds of at least four people and which will affect them, to a greater or lesser extent, every day of their lives” (Wilson, 2014, 19 Denning Society Lecture at Lincoln’s Inn: Adoption: Complexities beyond the Law, 13 November 2014, The Supreme Court)

As the purpose of adoption is to effect a permanent change of family, the making of an adoption order is seen as final, and it is thus very rare for an adoption order to be put aside, even where natural parents have suffered a serious injustice. In Webster v Norfolk County Council and the Children/ by Their Children’s Guardian [Webster v Norfolk County Council and the Children/ by Their Children’s Guardian [2009] EWCA Civ 59] three children were adopted without parental consent because of what was thought to be non-accidental injury to one of the children who had suffered fractures. Later on expert evidence suggested that the fractures had been caused by a rare case of scurvy as a result of the child’s diet which had been recommended by doctors.

The Court of Appeal refused the parents leave to appeal out of time to have the adoptions set aside, having regard to the public policy considerations regarding adoptions as well as interests of the children: they were settled with their adoptive parents. The adoptive parents argued that overturning the adoptions would “cause enormous stress, anxiety, disruption and emotional / psychological harm, particularly to the children” (para 92).

Wilson LJ concluded that it was too late to set aside the adoption orders, considering the interests of the children: “almost four years ago they moved into alternative homes which they were told would be permanent and of which they would be full, legal members; and at that time they ceased even to see the applicants.” (para 204). Thus, the interests of the children prevailed to the extent that the Court effectively decided to leave the children in their “alternative homes”. The parents, on the other hand, are determined to remain living in the same house until their children are old enough to come and find them. “When she knocks on our door, we will be here with all the love and the kisses and the memories and hugs that we have all missed. I pray for that every night”, the mother said in a recent newspaper interview. [Craig, Olga. Stolen by the state: A story of love and loss that’ll make you seethe – a mother falsely accused of abuse reveals her relentless hunt for her three babies. In the Mail on Sunday, 06.06.15]

The Children and Families Act 2014

The Children and Families Act 2014 came into force in April last year. Most practitioners agree that its main reform was at section 14, to introduce a time limit of 26 weeks for care and supervision proceedings, although the court can extend that period, but “only if the court considers that the extension is necessary to enable the court to resolve the proceedings justly”. The main reason for the reform was the view that delays in care and supervision proceedings were harmful to children. “These family justice reforms put children clearly at the heart of the family justice system and focus on children’s needs rather than what parents see as their own ‘rights’”, announced Simon Hughes, the then Justice Minister. [Family Justice Reforms to Benefit Children – Press release – GOV.UK/ 22.04.14].

Many judges, on the other hand, are concerned that the imposed time limit could be in conflict with the court’s aim to determine the right outcome in the proceedings: “Where the proposal before the court is for non-consensual adoption, the issues are too grave, the stakes for all are too high, for the outcome to be determined by rigorous adherence to an inflexible timetable and justice thereby potentially denied.” [Re B-S (Children) [2013] EWCA Civ 1146, para 49]

Concern about the time limit has been expressed by other professionals: for example, a study by the Family Drug and Alcohol Court (FDAC) concluded:

The government’s agenda for adoption reform places emphasis on speeding up decisions and action in placing babies and young children with potential adoptive parents. When combined with the push to complete care proceedings within 26 weeks, and the research evidence about the fragility of reunification in some circumstances, this could serve to heighten doubts about the value of FDAC’s focus on supporting reunification in cases where that is appropriate. [Hayes, Derren. 26-week target ‘could limit help for substance misusing parents’ [Children & Young People Now, 01.05.14]

Reporting restrictions and transparency – a glimmer of hope?

There are long-standing and well-established “automatic restraints” on the publication of information relating to proceedings under the Children Act 1989. Section 97 of the Act provides that:
(2) No person shall publish [F3to the public at large or any section of the public] any material which is intended, or likely, to identify
(a) any child as being involved in any proceedings before [F4the High Court, a county court or] a magistrates’ court in which any power under this Act [F2or the Adoption and Children Act 2002] may be exercised by the court with respect to that or any other child; or
(b) An address or school as being that of a child involved in any such proceedings.

In addition to the “automatic restraints” courts can make injunctions preventing parents from discussing their legal cases with other parties even after the proceedings have been completed. However, parents who have lost confidence in the English family court system often turn to other organisations for support. A potential conflict thus arises between the parents’ rights for free speech and the child’s life to a private life, and numerous authorities have grappled with this issue in recent times. For example, in November 2014 the EU parliament’s Petitions Committee condemned “unacceptable” moves to pressure people from giving evidence to MEPs at a time when most complaints about forced adoption or the unjust loss of children to social services are coming from Britain. “In my experience, the UK is unique in Europe for the secrecy of its family courts and for the threats and bullying by authorities of parents who want to speak out about their treatment,” said Tatiana Zdanoka, a Latvian MEP [Waterfield, Parents fight British social services ‘gag’ to petition European Parliament. In The Telegraph, 12.11.14]

In Re J [Re J (A Child) [2013] EWHC 2694 (Fam)] the father of four children, all of whom had been the subject of care proceedings, posted a film of the execution of the emergency protection order in respect of his youngest child. The film was shared on Facebook and YouTube. The issue for the court was whether or not there was justification for extending J’s anonymity after the care proceedings were over. The President of the Family Division agreed that the case raised “important questions about the extent to which the public should be able to read and see what disgruntled parents say when they speak out about what they see as deficiencies in the family justice system”. He made an order contra mundum, but the restriction was only against the publication of J’s name, not his image, largely because internet viewers are unlikely to be able to identify a one day old baby.

The President expressed his view at paragraph 71 of his judgment:

The father wishes to share such information with others and, so long as he keeps within the confines of section 12 of the 1960 Act, why should he not be able to do so? And why should those who may wish to hear his views not be permitted to approach him?

Conclusion

Having considered orders frequently made in private and public law, it is my view that parents’ rights are often disregarded in favour of children’s rights.

Choudhry and Herring attempt to answer the question: why is it that children’s interests should be seen as being particularly important as compared to the interests of an adult? They suggest that an order which is interfering in a child’s right to private or family life is likely to be “far more of a blight” than an identical order on an adult’s life. This is because the child is less equipped to deal with setbacks in their interests and life changes. They lack practical possibilities of remaking life plans, experience, maturity and even intelligence to develop alternatives. Moving them from a place where they have an established set of friends would be particularly disturbing for a child. [Choudhry and Herring/ European Human Rights and Family Law/ Oxford: Hart Publishing, 2010, 234.]

This is, of course, true – but the result of the current policy of intervention is exactly that: many children are moved from their homes, parents, friends, siblings. Two younger children in the Webster family, for example, have never even met their siblings.

At a Multi-Disciplinary Conference “Is the child protection system fit for purpose?” (01.06.2015) recently retired High Court Judge Sir Mark Hedley suggested that children who have been removed from their parents may grow up and challenge the Local Authority: “What have you done to keep me in my family?”

Bibliography

Books:
Bainham, Andrew, and Gilmore, Stephen/ Children – the Modern Law/ Fourth edition/ Bristol: Jordan Publishing Limited, 2013.
Choudhry, Shazia and Herring, Jonathan (2010)/ European Human Rights and Family Law/ Oxford: Hart Publishing
Gilbert, Neil; Parton, Nigel and Skivens, Marit/ Child Protection Systems: International Trades and Orientations. Oxford: Oxford University Press, 2011.
Hendrick, Judith (2005.) Law and Ethics in Nursing and Health Care/ New York: Nelson Thornes Ltd.
Herring, Jonathan (2012.) Family Law/ London: Routledge.
McCall Smith, Alexander (1990). Is anything left of parental rights? In Sutherland and McCall Smith Family Rights: Family Law and Medical Ethics/ Edinburgh: Edinburgh University Press.
Sawyer, Caroline (2009.) Children’s Representation by Their Parents/ in Responsible Parents and Parental Responsibility. Oxford: Hart Publishing, 215-235.

Periodical articles:

Baksi, Catherine/ Family lawyers sound alarm on separating parents/ The Law Society Gazette, 14.08.14

Booker, Christopher. The real story of the ‘baby with no name’/ In the Telegraph, 31.05.14

Craig, Olga. Stolen by the state: A story of love and loss that’ll make you seethe – a mother falsely accused of abuse reveals her relentless hunt for her three babies. In the Mail on Sunday, 06.06.15

Family Justice Reforms to Benefit Children – Press release – GOV.UK/ 22.04.14

Fathers4Justice campaigner jailed for defacing Queen’s portrait. The Guardian, 05.02.14

Hayes, Derren. 26-week target ‘could limit help for substance misusing parents’ | Children &
Young People Now, 01.05.14

Lord Wilson gives the Denning Society Lecture at Lincoln’s Inn: Adoption: Complexities beyond the Law, 13 November 2014, The Supreme Court.

The Narey Report on Adoption: Our Blueprint for Britain’s Lost Children. /The Times. July 5, 2011

Waterfield, Bruno (2014.) Parents fight British social services ‘gag’ to petition European Parliament. In The Telegraph, 12.11.14

Statutes:

Adoption Act 2002
The Children Act 1989
The Children and Families Act 2014

Cases:

Borough of Poole v W & another [2014] EWHC 1777 (Fam)
Hertfordshire County Council v F & Others [2014] EWHC 2159 (Fam) (23 May 2014
Re B-S (Children) [2013] EWCA Civ 1146
Re J (A Child) [2013] EWHC 2694 (Fam)
Webster v Norfolk County Council and the Children/ by Their Children’s Guardian [2009] EWCA Civ 59
X Council v B (Emergency Protection Orders) [2004] EWHC 2015 (Fam), [2005] 1 FLR 342

Parental Responsibility

What does it mean? And who has it?

Please see this free guidance from the Custody Minefield for further information.

Parental responsibility (PR) was introduced by section 2 of the Children Act 1989. It replaced the concept of parental rights in section 4 of the Family Law Act 1987.

It is defined at section 3(1) of the Children Act as:

all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property

There is no other statutory definition of what PR means. It is often said that this is a matter of ‘status’ rather than ‘power’. If you have parental responsibility, you are responsible for making decisions in your child’s best interests – but that doesn’t mean you can veto the decision of anyone else who has PR (unless you have a Special Guardianship Order); nor you can attempt to ‘micro manage’ the daily decisions made by another parent.

The court described PR in this way in the case of Re D [2014]:

The concept of parental responsibility describes an adult’s responsibility to secure the welfare of their child which is to be exercised for the benefit of the child not the adult. The all encompassing nature of the responsibility underpins one of the principles of the Act which is the ‘no order’ principle in section 1(5) CA 1985: the expectation that all other things being equal parents will exercise their responsibility so as to contribute to the welfare of their child without the need for a court order defining or restricting that exercise. That the status relates to welfare not the mere existence of paternity or parenthood is clear from the decision in Smallwood v UK.

The court described it in this way in Re W (Direct Contact) [2012] EWCA Civ 999 (see para 80):

Whether or not a parent has parental responsibility is not simply a matter that achieves the ticking of a box on a form. It is a significant matter of status as between parent and child and, just as important, as between each of the parents. By stressing the ‘responsibility’ which is so clearly given prominence in the Children Act 1989, section 3 and the likely circumstance that that responsibility is shared with the other parent, it is hoped that some parents may be encouraged more readily to engage with the difficulties that undoubtedly arise when contemplating post separation contact than may hitherto been the case.

In Christian Institute v Lord Advocate [2016] UKSC 51; 2017 SC (UKSC) 29, paras 71 to 74, the Supreme Court recognised the responsibility of parents to bring up their children as they see fit, within limits, as an essential part of respect for family life in a western democracy.

PR in practice

Generally, if you are a parent with PR you should expect to be consulted by the other parent about major matters such as education and health issues. If different people who hold PR can’t agree, they will have to go to court to ask the Judge to decide what to do. The following are examples of situations where you need to inform and consult the other parent before making a decision. Day to day decisions about what time the child gets up, what he has for breakfast etc are not usually issues that you have to consult with the other parent about.

education – decisions about applying or attending school, which parent will attend what school functions and when.
which parent is spending what time with children in school holidays
planned medical or dental treatment which is more than just routine check ups
any decision to stop treating a child with prescribed medication.

Taking children abroad

You can only take your child out of England and Wales without the consent of anyone else who has PR for 28 days IF you have a child arrangements order (previously called a residence order).

If you don’t have such an order or you are out of the country for longer, and you don’t have the consent of the other parent with PR, you could be committing the offence of child abduction. Many countries will now require that you travel with a letter from the other parent, confirming that they consent to their child travelling. See this article for further discussion.

Many parents are not aware of this and mistakenly think they do not need the other parent’s permission. If the other parent won’t consent, you will have to apply to court for a Specific Issue Order.

If you have a Special Guardianship Order (SGO) you can take the child out of the jurisdiction for up to 3 months without consent.

Different treatment of mothers and fathers

Men and women are treated differently when it comes to PR. Mothers and married fathers have PR automatically. An unmarried father has parental responsibility for his child by:

being registered as the child’s father on his birth certificate,
by a parental responsibility agreement entered into between the parents or
by a court order. An unmarried father can only lose parental responsibility by an order of the court to that effect.

Section 111 of the Adoption and Children Act 2002 [ACA 2002] amended the Children Act 1989 to give PR automatically to unmarried fathers who are on the child’s birth certificate after 1 December 2003. See section 4(1).

The reasons for this were described in Re M (A Child) sub nom PM v MB and M (A Child) [2013] EWCA Civ 969 at [14]:

Since 1 December 2013 and by section 4(1) CA 1989 as inserted by section 111 Adoption and Children Act 2002, an unmarried father acquires parental responsibility by the inclusion of his name on the child’s birth certificate. That legislative change accompanied society’s recognition of and expectations for the exercise of parental responsibility by parents who are not married or in a civil partnership and who have separated with the consequence that the child does not live with one or other of them. It has become more common for parental responsibility to be considered by a court before other substantive welfare decisions are made because it is an important status which is an incident of the family and private lives of the adults and child concerned and which is reflected in the way in which parents should exercise their responsibilities for their child. It should be rare for a father not to be afforded this status.

What do the courts consider if a father is arguing for parental responsibility?

In Re D [2014] EWCA 315 the Court of Appeal considered the case law.

Parental responsibility is an issue concerned with the upbringing of a child and therefore under section 1(1)(b) CA 1989 the child’s welfare will be the court’s paramount consideration. The court doesn’t have to consider the section 1(3) (the ‘welfare checklist’) but it’s probably a good idea and the court may find it helpful to use an analytical framework not least because welfare has to be considered and reasoned.

The paramountcy test is overarching and no one factor that the court might consider in a welfare analysis has any hypothetical priority. The factors that are often considered are the degree of commitment which the father has shown to the child, the degree of attachment which exists between the father and the child and the reasons of the father for applying for the order.

But these factors are NOT a ‘substitute test’ to be applied (see Re M (A Child) sub nom PM v MB and M (A Child) at [15] and [16]

Can parental responsibility be taken away?

Neither mothers nor married fathers can have their parental responsibility removed, unless an adoption order is made. This distinction has been found compatible with Article 8 of the ECHR. (See Smallwood v UK (29779/96) (1999) 27 EHRR CD 155).

Unmarried fathers can have their PR removed if the court finds this is in the best interests of the child but this is a very unusual step.

For a case where PR was removed from an unmarried father who had pleaded guilty to sexual offences against the mother’s other children and caused huge emotional devastation to the family,see Re D [2014] EWCA 315 discussed above.

For a recent example of this rare decision by a court to remove a father’s PR after his persistent abusive behaviour, see the case of C v D & Anor [2018] EWHC 3312 (Fam) (28 September 2018)

A father who caused catastrophic brain injury to a child was also stripped of PR. See K (CESSATION OF PARENTAL RESPONSIBILITY) [2019] EWFC B54 (09 October 2019)

As was a father who attempted to murdered the children’s mother and was sentenced to a minimum term of 13 1/2 years in prison – see X and Y (private law – change of name – termination of parental responsibility) [2021] EWFC B24 (19 April 2021)

Consequences for PR of different orders

A care order

The key distinction between care and supervision orders is found under section 33(3) of the Children Act. Only a care order can gives the LA parental responsibility and the power to decide how any one else can exercise their parental responsibility. It is often said that a care order allows the LA to ‘share’ parental responsibility but the more realistic description is that the LA is now in the driving seat when it comes to making decisions about the child.

The LA can control parents’ exercise of their parental responsibility when ‘necessary’.
However, under section 33(4) the LA can only use their powers to control other people’s parental responsibility if to do so is necessary to safeguard or promote the child’s welfare. Together with the considerations of Article 8 of the ECHR and the need to act proportionally, the LA will need to think seriously about whether or not what it proposes is ‘necessary’.

For further information about the impact of care and supervision orders, see this post.

A special guardianship order

The holder of the SGO has ‘enhanced’ PR and can override the wishes of others with PR. See 14(C) of the Children Act. For more information on SGOs, see this post.

An adoption order

This will sever all legal ties between the child and the birth family and the parents will no longer have PR.

Who can help me present my case to court?

Further advice from a Lay Advocate

Here Ian Julian, a Lay Advocate since 2003, describes the various options that are available to give you help in court. You may also be interested in this post – What if I don’t have a lawyer?

• Solicitors and Barristers – These can cost a considerable sum of money but will be able to prepare your case and present it before the Court. Many Barristers offer a Direct Access service, which can provide you with an Advocate in the Courtroom but without the cost of Solicitors preparing, drafting and advising you along the way. This may suit someone of limited means who can handle their own paperwork confidently. More recently, some barristers are permitted (licensed) to Conduct Litigation, which allows them to act on your behalf, such as signing letters and holding client funds.

[Parents in care proceedings are entitled to non means, non merits tested legal aid. After the care proceedings, if you want to appeal or apply to discharge the care order for example, you may find it much more difficult to qualify for legal aid]

• Litigation Friends – These come in many guises and can be more or less helpful and / or experienced. Common Law provides that a person may have any person speak on his behalf in a Court of Law. Courts will want you to have every reasonable assistance and will recognise that the Courtroom is an alien environment for most people in stressful circumstances. While you may be confident and it can be helpful for the Judge to hear from you directly, it may also be useful to have some additional help to explain what you want and why.

You may need a Litigation Friend to assist you in understanding the proceedings if you have a disability such as a learning or speech or language impairment. This can be in addition to your lawyer (more often now that the Official Solicitor is less available).

• McKenzie Friend – in hearings held in private, the Guidance for Family Courts allows the assistance of a McKenzie Friend (to quietly advise you, take notes and to assist you with papers) It is at the Judge’s discretion to allow your assistance and the presumption is in favour of a McKenzie Friend unless there is good reason to refuse you (it should not be an antagonistic relative for example). Please be aware that the recent cuts in legal aid have encouraged numerous McKenzie Friends to offer a service at high prices, which may not always provide a quality or experienced assistance. Always check credentials such as observing media websites and checking for CV’s and experience. A novice wanting to help and gain experience, should not be seeking more than their expenses.

• If granted Rights of Audience, you may have a Lay Advocate or an accredited Advocate,who will present your case to the Court as a Barrister does. The Judge may permit you to have a Lay Advocate if he is of good reputation and can assist the Court in dealing with the proceedings effectively. This can save time and expense for everyone and an experienced assistant will help the Court by guiding you as to what is possible and what is unhelpful. Granting this right for your Advocate to address the court directly will be at the judge’s discretion and he will want to be assured that your advocate is accredited (for example: F Inst Pa, Q Inst Pa, etc) has insurance and completes his Continuing Professional Development.

You should write to the Judge in advance asking permission for the assistance you want to use and inform the other Parties. Your Friend should send a CV to the Judge, which will assist his decision.

Only Solicitors are permitted to “conduct litigation” (i.e. hold client monies or sign letters on your behalf). Direct Access Barristers cannot “conduct litigation” either, unless licensed as described above.

(Author: Ian Julian, F Inst Pa, Advocate since 2003)

Assessing the credibility of witnesses

In an adversarial system, the Judge will attach a lot of importance to the evidence given by a witness, both in writing and in person. The basic rule is ‘he who asserts, must prove’ and the standard of proof in family cases is the ordinary civil standard i.e. ‘on the balance of probabilities’.

It is often said that the Judge who sees and hears the witness give evidence has a significant advantage in being able to assess their credibility ‘on the spot’. Mostyn J commented in a speech at Bristol University in December 2014 about the craft of judging and the fallibility of memory (see paragraph 5):

If I were to ask you what was the key factor in finding facts in a trial you might reply “credibility”. Who does the judge believe? The primacy of the factor of credibility has an iconic, almost canonical, status. Thus Posner writes at page 123: “No legal catchphrase is more often repeated than that determinations by a trial judge whether to believe or disbelieve a witness can be overturned on appeal in only extraordinary circumstances. The reason is said to be the inestimable value, in assessing credibility, of seeing and hearing the witness rather than reading a transcript of his testimony, since the transcript eliminates clues to veracity that are supplied by tone of voice, hesitation, body language, and other non-verbal expressions.”

However, given what is widely understood about the fallibility of memory, Mostyn J and many other judges and commentators have cast considerable doubt on this view that assessing the credibility of witness evidence in court is really going to help the Judge a great deal in determining where the truth can be found. Memories are notoriously susceptible to subsequent alteration by unconscious bias or ‘wishful thinking’. Our memories of what happened can change over time and harden into something very different from what actually happened.

The case of Excelerate Technology v Cumberbatch [2015] provides some useful discussion about how Judges assess credibility. ‘Credibility’ is not the same as ‘demeanour’ which is concerned with whether or not a witness appears to be telling the truth.

Credibility deals with the following issues:

is the witness a truthful or untruthful person?
If truthful, is he telling something less than the truth on this issue
if untruthful is he telling the truth on this issue? Not all liars lie all the time and motivations for lying can vary; see the Lucas direction.
If truthful and telling the truth as he sees it, can his memory be relied upon?
Is what is asserted so improbable that it is on balance more likely than not he was mistaken in his recollection?

The court considered the dissenting speech of Lord Pearce in the House of Lords in Onassis v Vergottis [1968] 2 Lloyds Rep 403 at p 431.

Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred.

The importance of written contemporaneous evidence

Mostyn J referred approvingly in his speech of December 2014 to comments in the case of Gestmin SGPS SA v Credit Suisse (UK) Ltd & Anor [2013] EWHC 3560 (Comm) (15 November 2013).

In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.

Test witness evidence against objective and independent facts

The best way of testing witness credibility is likely to be to test their veracity by reference to objective facts which are independent of their testimony. This was considered by Lord Goff in Armagas Ltd v. Mundogas S.A. (The Ocean Frost), [1985] 1 Lloyd’s Rep. 1, p. 57:

Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth.

We are almost certainly going to see an increase in both audio and visual recordings of interactions between parents and professionals, given the increasing availability of cheap and reliable recording equipment. It may be that we will soon see reliance being placed first and foremost on such recordings; rather than the inherent fallibility of recalling memories.

Censorship and the protection of commercial interests – the woeful state of our debate about protecting children.

This is a post by Sarah Phillimore
On the morning of Friday August 21st I posted a comment on the Marilyn Stowe blog after the former MP John Hemming had written a guest post about adoption statistics. The biography attached to his post described him simply as a highly educated and respectable former MP and councillor. It was, perhaps unsurprisingly, silent as to any of his other activities which have caused me and many others serious concern over the years.

My comment on this piece, about the need to be aware of and alert to these activities of Mr Hemming, led to an invitation from that site’s owner to contribute a guest post. I was happy to do so as the issues I wished to raise are, in my view, serious and significant.

Later that day I received an edited version of my post and was asked to accept the revisions made. I did not receive that email until fairly late on Friday evening. It was not until sometime later that I was able to sit down and give these revisions my full attention. When I did, I was unpleasantly surprised by what I found.

Of course, it is entirely up to Ms Stowe what she permits on her blog. I cannot dictate to her what she publishes. But I am very unhappy to note that significant portions of what I wrote have been removed, despite everything that I had written being

true
highly relevant to my argument and
already published elsewhere and well and truly in the public domain.

Most concerningly, a sentence from the judgment of Wall LJ in RP v Nottingham had been removed.

Search Engine Optimisation versus open and honest debate

I queried this via email and was told that the site would be penalised in its google rankings by relying on links to other sites in the way that I had done and the commercial interests of the site must be protected.

As I pointed out in reply, it is difficult to see how including the final sentence of a paragraph from a judgment from Wall LJ would have negative implications for any Google rankings. Ms Stowe was also happy to include a link to my own site when discussing an article about other European countries, but would not include a link to a post setting out the connections between Hemming, Josephs and Booker.

I commented further:

I think this is a very important issue – either you are unable to post relevant information because it may damage the site’s commercial interests OR there is some other reason, as yet undisclosed to me, as to why this information can’t be published by you.
I am pretty ignorant of SEO issues and how Google issues penalties, so I will take your word about that. But I will remain very puzzled why the words of a former President of the Family Division in any way are relevant to issues of Google ranking and protecting your site’s commercial viability.
And it does of course raise a wider and even more important issue about how the necessary debate about the child protection system is best served if such an important and well respected source such as yourself, finds itself unwilling to discuss certain issues because they may impact on the commercial interests of the site.
Are your readership aware of these potential constraints? I certainly wasn’t.
[EDIT I have just received an email from Marilyn Stowe to say that they are going to ‘call it a day’ and will not publish my post. I have received no further clarification about why the edits to my post were required or necessary, other than that it is the policy of the blog to be ‘non confrontational’]

I am left in this rather uncomfortable position. If the reason given for the editing is correct, then information which is a) true b) relevant and c) in the public domain is being excluded from the debate on the site, to protect its google rankings and its commercial interests. However, I am unable to accept that as a reason for censoring a quotation from a judgment of a High Court Judge.

So what was I trying to say that wasn’t fit to publish?

I will set out my original post below and the edits and you can make your own minds up about the reasons for editing. But whatever the reasons, this cannot be the way to conduct the necessary open and honest debate about the child protection system that is needed now, more than ever.

I of course am happy to provide a right to reply to anyone I discuss in my posts. I am happy to be educated further about the impact of Search Engine Optimisation tactics on internet debate. I would also be delighted to know that Mr Hemming is prepared to renounce his links with Ian Josephs and Christopher Booker and to put his obvious drive and intelligence to better use.

But unless and until he does that, if he wishes to position himself as a credible and reliable voice in this crucial debate, others are entitled to have the fullest possible information about what he actually believes, with whom he associates and the risks they pose.

I set out my original piece below and will indicate in the text in bold what has been removed or altered. I have not included the minor edits regarding a choice of word or phrasing. It is the wholesale removal of pertinent facts to which I very strongly object.

Open and honest debate about the child protection system is needed now more than ever.

I am a family law barrister of 15 years experience and the site administrator of www.childprotectionresource.org.uk which was set up on 2014 in an attempt to provide accurate information to all those involved in the child protection system.

This guest post arises out of another guest post published on this site by John Hemming.

On the face of it, this post looks like a respectable attempt to analyse statistics around the number of children adopted in the UK. I accept now, and have accepted for years, that we urgently need an open and honest debate about what is really going on in our child protection system.

Although Mostyn J (and many others) are simply wrong to opine that there are ‘only’ 3 (or even no other) systems in Europe that permit forced adoption – see this post from Claire Fenton Glynn – it is true that England and Wales are by far the most enthusiastic proponents of ‘forced adoption’ of all Council of Europe member states and we are entitled – even morally obligated – to discuss this and to understand why.

However, just because the debate is necessary and important, does not mean we should not take care about who is contributing to it and what they are saying.

I have been concerned for many years about the motivations of many of those prominent figures in the debate and the impact they are having. Mr Hemming is described in this guest post as a highly educated and respectable former city councillor and MP.

But there is another side I think it is important to share. Disclaimer: My run ins with Mr Hemming now extend to four years of internet debate. He has made formal complaint about me to the Bar Council (not upheld) and gave an interview to the Daily Mail following his expulsion from the mumsnet website in 2014, which curiously felt it appropriate to publish both my real name and my mumsnet user name side by side. It is entirely possible that my dislike for what I perceive as Mr Hemming’s tactics of intimidation, [this has been edited to read: ‘it is entirely possible that my dislike for Mr Hemming’s tactics…] means I am not able to take a dispassionate view about his activities.

Therefore I present to others the facts so that they may make up their own minds.

The family law system as ‘evil’.

A good starting point to understand why Mr Hemming has nominated himself as a crusader against the ‘evil’ family justice system can be found in Jonathan Gornall’s article in 2007. Mr Hemming then repeated his allegations about the ‘evil’ and corruption of the family justice system to Wall LJ in the case of RP v Nottingham in 2008

It is plain to me from these documents, that in addition to the allegations set out above, Mr. Hemming believes that HJ was in the pay of the local authority and thus was “the local authority’s expert”. For good measure, he asserts that the system is “evil” and that “there does seem to be little concern in the legal profession about the reliability of opinion offered in court.”. The clear implication behind the “witch findings” items on the website set out at paragraph 95 above is that “experts” like HJ are in it for the money; that they are happy to “manufacture ‘evidence’”; and that they are in receipt of “phoney” letters of instruction. The result, Mr Hemming asserts is a “disaster”.
98. In my judgment, these comments are not only wrong and ill-informed; the simple fact remains that they have no foundation in the evidence presented either to the Nottingham County Court or to this court. That they are made publicly by Mr Hemming once again strikes me as an abuse of his position.[This sentence has been entirely removed with no warning or indication to the reader that Wall JL’s paragraph has actually been cut short]

This remains Mr Hemming’s position in 2015

Mr Hemming repeated again in a comment on my blog in August 2015 that the system is ‘evil’ and then opined that children are taken into care just because their parents smoke. He made no response to my challenge that this was clearly a nonsense assertion.

But it is not simply comments like that which raise concerns. Mr Hemming unfortunately does not restrict himself to comments. He takes action – and he has clear and active current links with others who, in my view, pose a significant danger to vulnerable children. [This has been edited to say simply ‘pose a risk’]

One such person is Ian Josephs. I provide a full discussion of his activities on this post, together with links to support my assertions. [This has been entirely removed and replaced by ‘who assists mothers facing care proceedings to leave the UK]
In brief, it has now come to light that Marie Black, convicted of a number of serious child sex abuse offences in July 2015, was assisted by Ian Josephs to leave the UK rather than face probable care proceedings. [this sentence has been removed entirely]When challenged, Mr Josephs asserts that he is doing ‘nothing’ wrong, he would help ‘any’ mother facing the evil of forced adoption and he undertakes no prior risk assessment before handing out money, and undertakes no follow up once the parents leave the country. He estimates he has spent at least £30,000 and ‘assisted’ 200 families to date.

This network supporting ‘mums on the run’ is clearly supported by Mr Hemming, who writes about it on his own blog and appears on a video on Youtube with Mr Joseph. The links between Hemming, Joseph and Christopher Booker are also depressingly clear.

I have to give Mr Hemming recognition for bringing to light some important issues which were over looked. It is right, for example, to be concerned that recent cases involving children from other countries showed a widespread ignorance of our obligations under the Vienna convention. He is right to be concerned that the apparent promotion of adoption over other options for children in care, may have had a distorting impact on the practice of various professionals.

The impact of assertions that the system is ‘evil’

But why must he have this debate in the context that the family justice system is ‘evil’? How is this helping anyone? I am dealing with an increasing number of parent clients who are unable to engage with the system due to their massive amounts of distrust and fear which such irresponsible hyperbole promotes. It is beyond depressing and irritating to be constantly told I am a ‘legal aid loser’ with my ‘snout in the trough’. I have faced these and similar comments over many years from both Mr Hemming and Mr Josephs.

I remain concerned that positive outcomes from Mr Hemming’s campaigning were thus no more than a fortunate by-product and do not reflect his dedicated aim. That aim would appear rather to be to encourage partial and misinformed debate about the family justice system, including an appearance on national television in 2014 to tell parents to leave the country as they won’t get a fair trial.

This kind of comment coming from a serving MP – as he was at the time – can only have had massive impact on some very desperate and vulnerable people.

Desperate need for open and honest debate

We urgently need open, honest debate about what on earth is going on in child protection system. And I don’t think we will get that from Mr Hemming given his current associations and clearly expressed views about the ‘evil’ of the system – presumably that evil extending to all who work in it, including me.
But as ever, I am delighted to be proved wrong.

Bringing proceedings for contempt against a professional

H had a relationship with his daughter B but it broke down; he believed that this was due to the malicious influence of B’s mother and grandmother who encouraged her to become alienated from him. He make an application to the family court in 2013 to attempt to restore his relationship with his daughter, but to no avail.

He then ran out of money and could no longer afford legal representation. As a litigant in person he attempted to have a the mother’s solicitor and two Cafcass officers sent to prison for what he alleged were to their respective failings and breaches of court orders which had a negative impact on his case to have contact with his daughter. [See the judgment in the case of Dent, Mackay, Harman v H [2015] EWHC 2090].

He alleged the mother’s solicitor had abused her position as a ‘trusted officer’

…to act in what was effectively a quasi-judicial manner when persuading [H] towards a slanted outcome’ by giving false legal advice in relation to H and Ms McKay in relation to international and/or European law and using deception and threats to achieve the outcome she sought for her client.

The court did not find that H’s application had any merit and went even further, striking out the applications pursuant to FPR 2010 r 4.4 as:

disclosing no reasonable grounds for bringing the application; and
an abuse of the court’s process, bearing in mind the overriding objective in FPR 2010 r 1.1; and
the failure to comply with the requirements of FPR 2010

The case is essential reading for anyone who is contemplating these kind of proceedings and sets out clearly the necessary procedural and legal requirements.

It is crucial to be clear about what you say they did wrong

Part 37 of the Family Procedure Rules 2010, supplemented by Practice Direction 37A, applies to such applications. H sought committal orders under both Chapter 2 (breach of a judgment, order or undertaking to do or abstain from doing an act) and under Chapter 4 (interference with the due administration of justice). To proceed under Chapter 4, H needed the court’s permission to proceed (FPR r 37.13(1) and (2)).

FPR r 37.10 sets out how to make a committal application. This is using the Part 18 procedure in the proceedings in which the judgment or order made, or undertaking given. The application notice MUST

set out in full the grounds on which the committal application is made and must identify, separately and numerically, each alleged act of contempt including, if known, the date of each of the alleged acts; and
by one or more affidavits containing all the evidence relied upon.

It was vital that H was clear about what he was alleging the professionals had done wrong.

In order to get the permission of the court to carry on with his application, the burden of proof was on H to show that the defendants had acted to interfere with the due administration of justice; and
The defendants needed to know what they were defending themselves against; this is a very serious application that could end up with them in prison.

None of H’s committal application notices complied with the procedural requirements to set out the case precisely against the defendants and the court was not prepared to waive this procedural irregularity (see PD 37A para 13.2), because it can only do so when it is satisfied that no injustice has been caused to the defendant by the defect.

62. Here, the defects go to the very heart of the matter. Far from setting out in full the grounds on which each application against each Defendant is made with specific details of the alleged act or acts of contempt and the dates upon which they are said to have been committed, there is no specific information at all save for a series of very general allegations. I take the view that the notices as they stand would not provide any of these Defendants with the full particulars to which they are properly entitled. Serious allegations have been put before the court and H invites me to impose upon each a sentence of imprisonment which would have far-reaching and potentially devastating consequences in respect of their professional careers and livelihoods, quite apart from the deprivation of their personal liberty. Each has a right to know the case which is put against him or her.

Even if you are clear, the court may decide that committal is not in the public interest

The court also considered the case of KJM Superbikes Ltd v Hinton : Practice Note [2008] EWCA Civ 1280, [2009] 1 WLR 2406. In this case, the Court of Appeal considered an application by a litigant in person to bring committal proceedings against a witness who was said to have made a deliberately false statement to the court in civil proceedings. The Judge at first instance (applying the Civil Procedure Rules, which are broadly similar to the FPR) refused permission because committal would be a disproportionate response and was not in the public interest. This was upheld on appeal.

The Judge in H’s case agreed with what was said by the Court of Appeal by Moore-Bick LJ at page 2412 :-

’16 Whenever the court is asked by a private litigant for permission to bring proceedings for contempt based on false statements allegedly made in a witness statement it should remind itself that the proceedings are public in nature and that ultimately the only question is whether it is in the public interest for such proceedings to be brought. However, when answering that question there are many factors that the court will need to consider. Among the foremost are the strength of the evidence tending to show not only that the statement in question was false but that it was known at the time to be false, the circumstances in which it was made, its significance having regard to the nature of the proceedings in which it was made, such evidence as there may be of the maker’s state of mind, including his understanding of the likely effect of the statement and the use to which it was actually put in the proceedings. Factors such as these are likely to indicate whether the alleged contempt, if proved, is of sufficient gravity for there to be a public interest in taking proceedings in relation to it. In addition, the court will also wish to have regard to whether the proceedings would be likely to justify the resources that would have to be devoted to them.

17 In my view the wider public interest would not be served if courts were to exercise the discretion too freely in favour of allowing proceedings of this kind to be pursued by private persons. There is an obvious need to guard carefully against the risk of allowing vindictive litigants to use such proceedings to harass persons against whom they have a grievance, whether justified or not, and although the rules do not prescribe the class of persons who may bring proceedings of this kind, the court will normally wish to be satisfied that the applicant was liable to be directly affected by the making of the statement in question before granting permission to bring proceedings in respect of it. Usually the applicant will be a party to the proceedings in which the statement was made, but I would not exclude the possibility that permission might be granted to someone other than a party if he was, or was liable to be, directly affected by it. In my view there is also a danger of reducing the usefulness of proceedings for contempt if they are pursued where the case is weak or the contempt, if proved, trivial. I would therefore echo the observation of Pumfrey J in the Kabushiki Kaisha Sony Computer case [2004] EWHC 1192 (Ch) at [16] that the court should exercise great caution before giving permission to bring proceedings. In my view it should not do so unless there is a strong case both that the statement in question was untrue and that the maker knew that it was untrue at the time he made it. All other relevant factors, including those to which I have referred, will then have to be taken into account in making the final decision.’

Balancing the parent’s right to criticise against the professionals’ obligation to do their job

The judge pointed out that H’s complaint against the solicitor, ignored the fact that her professional duties lay with her own client, B’s mother.

She had no contractual relationship with H and at no time was her professional relationship with him impressed with any fiduciary or legal obligations. She had a professional obligation to act in the best interests of her client who, relying on the content of the Cafcass report, was unwilling to agree to an order for direct contact when such an order ran contrary to B’s clearly expressed views. Ms Harman had an obligation not to mislead the court. There is no evidence before me that she did so, still less that she fraudulently or knowingly practised a deliberate deception on the court.

It is clear that the ‘public interest’ test will be a high one in such cases and the court is likely to want to protect those who exercise public functions. The Judge went on to cite the judgment of the President of the Family Division In Re J (Reporting Restriction: Internet: Video) [2013] EWHC 2694 (Fam), [2014] 1 FLR 523, which highlighted points of fundamental importance:

the recognition of ‘the importance in a free society of parents who feel aggrieved at their experiences of the family justice system being able to express their views publicly about what they conceive to be failings on the part of individual judges or failings in the judicial system’.
the acknowledgement that the ‘fear of … criticism, however justified that fear may be, and however unjustified the criticism, is, however, not of itself a justification for prior restraint by injunction … even if the criticism is expressed in vigorous, trenchant or outspoken terms … or even in language which is crude, insulting and vulgar’.
But there is a fundamental difference between ideas, views, opinions, comments or criticisms, however strongly or even offensively expressed, and harassment, intimidation, threats or menaces. The one is and must be jealously safeguarded; the other can legitimately be prevented.
The freedom of speech of those who criticise public officials or those exercising public functions, their right to criticise, is fundamental to any democratic society governed by the rule of law. Public officials and those exercising public functions must, in the public interest, endure criticism, however strongly expressed, unfair and unjustified that criticism may be. But there is no reason why public officials and those exercising public functions should have to endure harassment, intimidation, threats or menaces.’

A parent’s view of the system – Humanity is the name of the game

We are grateful for the comments of Angelo, who has participated in some useful discussions on a variety of threads. With his permission, some of his comments are gathered together in this post so that the arguments don’t get lost.

The essence of Angelo’s objections to the current system is that the focus is on child rescue to the detriment of helping families stay together and that the UK is in danger of tipping into a disproportionate punitive response to families, in its legitimate wish to protect children.

As Charlotte Proudman and Frances Trevana commented in 2012

Local authorities would rather punish a particular class of parents for their failures than invest in supportive long-term support packages for parents to enable them to gather the parenting skills required to care for their children. The statistical correlation between parents subject to care proceedings and poverty reflects how society punishes the most vulnerable and impoverished. Historically the state punished the poor by incarcerating them in workhouses and removing their children at birth. Little has changed today, as oppressive state power legitimises the removal of children from destitute parents by labelling them as hopeless and undeserving.

As ever, all comments welcome that contribute to the debate.

We must not see any person as an abstraction. Instead, we must see in every person a universe with its own secrets, with its own treasures, with its own sources of anguish, and with some measure of triumph. Elie Wiesel

Proportionality and removal – only in cases of ‘deliberate malice’

Angelo has raised a number of concerns about the issues of proportionality and procedural safeguards in care proceedings. Is it always proportionate to remove children from parents who are violent? What should we be offering to parents by way of help and support? When do we ‘give up’ on families? And who is going to pay for all this?

The domestic violence and abusive behaviour we have discussed is dire. It is ‘UNCIVILISED’ and beyond the pale in a civilised society. Presented with such a case, any Court will feel bound to issue a protective order and rescue a child.

However,in my opinion, even if a parent IS charged and IS convicted of a criminal offence, permanent removal is over the top. Reform is preferable even if a man has to be gaoled or the family has to be supervised 24 hours a day to force it to change!

Whatever the case,reform and education must be the answer.

Forced adoption and permanent foster-care is totally unacceptable,in my eyes, except when something approaching deliberate malice can be demonstrated and there I mean in cases like that of Fred West who was torturing children.

On the other hand,as a last resort, I recognise there is often a need for temporary foster care whilst immediate problems are sorted out and the process of reform begins to take effect. I guess it might be necessary when both parents are violent or where Mum won’t go to a women’s shelter.All alternatives such as an extended family placement would have to be examined first, naturally.

Focus should be on education and support; working together to make change

There is a concern shared by many that women who are victims of violent partners and then ‘punished’ by having their children removed. Again, shouldn’t the focus be on education and support? Angelo discusses the work of the Danilo Dolci Foundation in Italy, which is based on the philosophy that change can only come with the direct participation of those involved and ‘the resources for the change are present and should be searched and evoked in the people themselves’. There are echoes here of the Finnish approach to ‘co-working’ with parents and children in the child protection system. Should we be more open to exploring this kind of model in the UK?

However, I think that the liquidation of families is not the way forward. I believe the separation of children from natural parents Is SUB-HUMAN and that the persecution of mothers who are who have previously been involved in dv is an invasion of their civil rights. I certainly do not believe they should be denied their fundamental human right to have more children and that if they do, that the helpless, innocent babes should be removed at birth. That is barbaric with a capital B! Such sanctions ( historically practiced by the ilk of Herod and Stalin) are pernicious and deadly to families. Despite that they are commonly imposed upon us by our system with the full endorsement of lawyers and the Courts and despite the Children’s Act which lays out the requirement for support and so on.

I believe the way forward lies in long-term education of families. Might I suggest you google Danilo Dolici Foundation and learn how similar social problems have been tackled in Sicily. I think you will find it enlightening if you have the time. Italy is not a third-world country either, it is a civilised country and Sicilian families were infected by all the symptoms of poverty brought about by organised crime and materialism as many of ours are.

Cases seen through a lens of suspicion

Angelo is clear that the consequences of NOT working with parents are dire; the ‘child rescue’ narrative comes to the fore and everything parents do is seen through a lens of suspicion and with a view to gathering evidence to support the case a social worker has already made. This issue is further explored by Lucy Reed writing in the New Statesman ‘In child protection cases, healthy scepticism too often turns to dangerous distrust’.

Social workers are full of theories (true or false) and they storm in to the lives of families with all sorts of irrational fears based on whatever they have learnt at college and after passing their college examinations usually by taking pot-luck when answering multi-choice questions. They are badly trained, badly managed, badly organised, overworked, mixed-up individuals and when told to go and investigate a referral, find the facts and make an open-minded, impartial report, they don’t know what impartial means.
Because of it, cases enter cloud-cuckoo land, as I call it, right from the outset. Perhaps a child arrives at school with a miniscule bruise which neither parent or child can explain .
So, the irrational fear is that because it is unexplained Dad might be a childbeater or and wifebeater. They ask the child does your Dad smack you ever? If the answer is yes then they will report that the miniscule bruise may have been caused by Dad. If the answer is no,they will report that a possibility exists that the child lives in a state of fear and will not implicate Dad. It’s called ‘OBTAINING BEST EVIDENCE’.
They’ll ask Mum. “Do You ever argue?” She will say all parents argue and they will ask “does he ever raise his voice?” She will say sometimes perhaps and then they will say. “Has he ever hit you?” If she says a definite no then they have (irrational) fears that she may (just may) be a woman who is cowed and afraid to speak out.
They simply do not listen to parents and cannot distinguish between fact and fiction!
When they raise the subject with Dad and he denies it then they will say that theoretically controlling men are very good at concealing their wrongdoings and turning the issues around!
I am not prejudiced against social workers, I’ve heard it on tape.
The fact-finding missions of simple concerns are turned into madcap INQUISITIONS where facts no longer matter. Later, when parents present the true facts, the lawyers turn round and say mum and dad are in dreamland with the fairies!

Humanity is the name of the game

Angelo is concerned that the drive to ‘rescue children’ has lead to proper procedures being overlooked or even flouted and the court process is not giving either children or parents the protection they need. He is not alone in this view; I assume the President of the Family Division would concur given his criticism of the ‘sloppy’ practices in many care cases. Do we need to have more of a focus on reminding each other of our essential humanity?

Every one is a human being and will have human foibles and and all are sinners, some more so than others. Human beings have children and problems will continue until the world comes to an end. Unfortunately, the world will never come to an end. The CS and the LA’s are exceeding any authority they have by playing GOD in cases (even though the majority are atheists). They are interfering in the lives of other human beings disproportionately thus abusing CHILDREN’s human rights as well as those of the wider family.

Why are they abusing the children’s human rights? Because they are contravening the statute (guidelines and frameworks) and conducting cases wrongly (illicitly). Whatever their motives are, it matters little to the victims who are being abused !

The LAW is put in place to protect them and their civil rights but the Court process does not afford them the protection they are entitled to. That is EITHER the fault of the lawyers OR that of the Court executive and protocol. Every family deserves a fair and impartial hearing in accordance with the Law. They aren’t getting one.

Some cases are appealed and judgments are overturned on those grounds. An appeal is the only remedy when cases are conducted illicitly. It’s no use campaigning for change, one must APPEAL under the existing law to rescue one’s children within time-scales relevant to their welfare. They will be grown-up by the time changes are made and even if they changes happened by miracle tomorrow, one’s children would still not be returned home to you without an appeal.

Given the seriousness of the sanctions which family courts dish out then I think wronged families and ALSO guilty families should have an automatic right to a legally funded appeal and their should be no time-limit for appeal.

What is foster care?

LA Foster Placements

Ending a foster placement

Duty of LA to promote contact with child in foster care

Private Fostering

Further reading

The law relevant to fact finding hearings in care proceedings can be summarised as follows.

Burden and Standard of Proof

Binary system – it either happened or it did not happen

Evidence not speculation

Expert Evidence

When a child has suffered injury

Further reading

Discussions with audience

See Further

Introduction – what is meant by parental rights and responsibility?

Historic developments

The Children Act 1989

Private law orders

Commonly used orders in public law

Emergency protection order

Care and Supervision Orders

The Placement Order

The Children and Families Act 2014

Reporting restrictions and transparency – a glimmer of hope?

Conclusion

Bibliography

What does it mean? And who has it?

PR in practice

Taking children abroad

Different treatment of mothers and fathers

What do the courts consider if a father is arguing for parental responsibility?

Can parental responsibility be taken away?

Consequences for PR of different orders

A care order

A special guardianship order

An adoption order

Further reading

Further advice from a Lay Advocate

The importance of written contemporaneous evidence

Test witness evidence against objective and independent facts

Further reading

Search Engine Optimisation versus open and honest debate

So what was I trying to say that wasn’t fit to publish?

Open and honest debate about the child protection system is needed now more than ever.

The family law system as ‘evil’.

This remains Mr Hemming’s position in 2015

The impact of assertions that the system is ‘evil’

Desperate need for open and honest debate

It is crucial to be clear about what you say they did wrong

Even if you are clear, the court may decide that committal is not in the public interest

Balancing the parent’s right to criticise against the professionals’ obligation to do their job

We must not see any person as an abstraction. Instead, we must see in every person a universe with its own secrets, with its own treasures, with its own sources of anguish, and with some measure of triumph. Elie Wiesel

Proportionality and removal – only in cases of ‘deliberate malice’

Focus should be on education and support; working together to make change

Cases seen through a lens of suspicion

Humanity is the name of the game