Author Archives: Sarah Phillimore

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.

 

Further reading

 

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.

Wardship

The wardship jurisdiction

The concept of ‘wardship’ is very ancient. It is part of the court’s ‘inherent jurisdiction’ i.e. the power of the court to make orders about matters which are not included in any statute. This is because the court is treated as a trustee of the Crown’s duty to protect all its subjects.  Wardship is just one facet of this wider inherent jurisdiction.  suesspicoussminds comments:

Wardship is part of the High Court’s Inherent Jurisdiction, and as long-term readers will know, the High Court is very fond of using the Inherent Jurisdiction as authority for doing just about anything, and often use the phrase “the powers of Inherent Jurisdiction are theoretically limitless”

The earliest origins of wardship can be found in feudal times, giving the Crown the right to exercise powers and duties over orphaned children whose fathers had owned land.  These children ‘belonged’ to the King as ‘pater patriae’ (the ‘father of the country’).

In 1540 a Court of Wards was set up to enforce the right of the Crown and the execution of its duties in connection with wardship. This court was abolished in 1660 but the wardship jurisdiction carried on and the Court of Chancery claimed jurisdiction over children. It began to expand from being merely concerned with property rights, to the general welfare and protection of children.

Lord Cottenham LC in Re Spence (1847) 2 Ph 247, 251 described wardship in these terms:

 I have no doubt about the jurisdiction. The cases in which the court interferes on behalf of infants are not confined to those in which there is property . . . This court interferes for the protection of infants qua infants by virtue of the prerogative which belongs to the Crown as parens patriae and the exercise of which is delegated to the Great Seal.

The Guardianship of Infants Act 1886 provided a statutory basis for consideration of children’s welfare – but ‘wardship’ continued to exist beyond statute law as part of the court’s ‘inherent jurisdiction’.

In R v Gyngall [1893] 2 QB 232,248, Kay LJ commented that wardship:

. . . is essentially a parental jurisdiction, and that description of it involves that the main consideration to be acted upon in its exercise is the benefit or welfare of the child. Again the term ‘welfare’ in this connection must be read in its largest possible sense, that is to say, as meaning that every circumstance must be taken into consideration and the court must do what under the circumstances a wise parent acting for the true interests of the child would or ought to do. It is impossible to give a closer definition of the duty of the court in the exercise of this jurisdiction.

Modern Day Wardship and its limitation by the Children Act 1989

Practice Direction 12D explains what is meant by wardship and the inherent jurisdiction in the modern age.

It is the duty of the court under its inherent jurisdiction to ensure that a child who is the subject of proceedings is protected and properly taken care of. The court may in exercising its inherent jurisdiction make any order or determine any issue in respect of a child unless limited by case law or statute. Such proceedings should not be commenced unless it is clear that the issues concerning the child cannot be resolved under the Children Act 1989.
1.2
The court may under its inherent jurisdiction, in addition to all of the orders which can be made in family proceedings, make a wide range of injunctions for the child’s protection of which the following are the most common –
(a) orders to restrain publicity;
(b) orders to prevent an undesirable association;
(c) orders relating to medical treatment;
(d) orders to protect abducted children, or children where the case has another substantial foreign element; and
(e) orders for the return of children to and from another state.
1.3
The court’s wardship jurisdiction is part of and not separate from the court’s inherent jurisdiction. The distinguishing characteristics of wardship are that –
(a) custody of a child who is a ward is vested in the court; and
(b) although day to day care and control of the ward is given to an individual or to a local authority, no important step can be taken in the child’s life without the court’s consent.

The Children Act 1989 introduced some significant limits to the jurisdiction. Section 100 provides  that wardship may NOT be used to put a child into care as this would by pass the Children Act 1989 and could mean that the necessary statutory tests weren’t met, such as the need to prove significant harm.

The Children Act itself was intended to incorporate many of the beneficial aspects of wardship, such as a flexible range of orders and the intention was that the Children Act would substantially reduce the need for people to apply to the High Court for wardship.

However, the Court of Appeal have confirmed that it is possible to make a child a ward of court when they are voluntarily accommodated by the LA under section 20 – see this post by suesspiciousminds for further discussion. 

If a wardship order is made, it is for the Court to make decisions about the child and the court can’t use wardship to make this decision if it could be made using any other provision of the Children Act 1989.

This is why wardship was used in the case of Ashya King in 2014 whose parents removed him from hospital in the UK and took him to be treated abroad. The LA were not applying to have him taken into care and there was no other provision in the Children Act that was available. Ashya was made a ward of court on the application of the LA and the parents were ordered to take him for medical treatment. Fortunately this case had a happy ending and the court were able to discharge the wardship order and Ashya remained with his parents.

Use of the inherent jurisdiction to accommodate children

For discussion as to when the inherent jurisdiction can be used to authorise placing a child in LA accommodation outside the statutory/regulatory regime see the case of Tameside MBC v L (Unavailability of Regulated Therapeutic Placement) [2021] EWHC 1814 (Fam). The court decided that it remains open to the High Court to use the inherent jurisdiction to authorise the deprivation of liberty of a child under 16, where the child will be living in a placement which is outside the statutory or regulatory scheme, provided that everyone followed the President’s Guidance of November 2019 entitled Placements in unregistered children’s homes in England or unregistered care home services in Wales and the addendum thereto dated December 2020. 

See also the discussion of the use of the inherent jurisdiction by the Supreme Court in the case of Re T[2021] UKSC 35, which determined that use of the inherent jurisdiction IS permissible and doesn’t ‘cut across’ the statutory scheme of LA accommodation – but expressed grave concerns about its use to fill gaps in the child protection system, due to lack of resources. The child’s consent or lack of it did not determine the decision about whether a deprivation of liberty was permissible. Placement of a child in unregistered or unregulated accommodation must be a temporary solution, only if no other alternative available and reflects a ‘scandalous lack’ of provision. The full judgment is here

Hearsay Evidence

Unless uncontroversial, it must be regarded with great caution

It is a frequent complaint that care proceedings are unfair because the court relies largely or entirely on hearsay evidence. ‘Hearsay’ in law is evidence provided by someone about something said by someone else and it usually is not admissible evidence in court proceedings for the simple reason that it cannot be tested in cross examination – the person who actually said the thing that is relied upon is not in court. For example, a report from a foster carer or a teacher about what a child said is hearsay.

Under section 2 of the Civil Evidence Act 1995 and Part 33 of the Civil Procedure Rules if a person wishes to rely on hearsay he must give advance notice to the other parties and explain why.

So why are proceedings involving children treated differently? Historically wardship proceedings in the High Court were an exception to the general rule that hearsay evidence would not be admitted. This is because in such cases the paramount consideration was the welfare of the children who were made wards of court, not the rights of the parties.

See Re W (Minors) (Wardship: Evidence) [1990] 1 FLR 203. The court said:

… wardship hearings are not subject to the strict rules of evidence and a judge exercising the wardship jurisdiction may admit evidence classed as hearsay which would otherwise be excluded.

The statutory justification for the use of hearsay evidence in care proceedings is found at section 96 of the Children Act 1989 which refers to evidence given by or in respect of a child. The Children (Admissibility of Hearsay Evidence) Order 1993, SI 1993/621, simply provides that such evidence shall be admissible “notwithstanding any rule of law relating to hearsay”.

Growing awareness of the impact on vulnerable witnesses of giving evidence has also impacted on the criminal courts – the Criminal Justice Act 2003 now allows for hearsay evidence to be given in criminal trials in a much wider set of circumstances than used to be the case.

Tension between admissibility of hearsay and rights to a fair trial

There is clearly a tension between the demands for a fair trial process pursuant to Article 6 of the ECHR and the need to protect children. The Supreme Court in W [children] 2010 UKSC 12 commented:

The object of the proceedings is to achieve a fair trial in the determination of the rights of all the people involved. Children are harmed if they are taken away from their families for no good reason. Children are harmed if they are left in abusive families. This means that the court must admit all the evidence which bears upon the relevant questions: whether the threshold criteria justifying state intervention have been proved; if they have, what action if any will be in the best interests of the child? The court cannot ignore relevant evidence just because other evidence might have been better. It will have to do the best it can on what it has.

Courts must consider hearsay evidence very carefully

But it cannot be a ‘free for all’. The court is entitled to the best evidence that can reasonably be put before it. The judge will have to consider hearsay evidence very carefully, particularly if it is relied upon to prove a particularly serious allegation, such as sexual abuse. The court in re W in 1990 commented:

In wardship, therefore, the rules as to the reception of statements made by children to others, whether doctors, police officers, social workers, welfare officers, foster-mothers, teachers or others, may be relaxed and the information may be received by the judge. He has a duty to look at it and consider what weight, if any, he should give to it. The weight which he places upon the information is a matter for the exercise of his discretion. He may totally disregard it. He may wish to rely upon some or all of it. Unless uncontroversial it must be regarded with great caution.

In considering the extent to which, if at all, a judge would rely on the statements of a child made to others, the age of the child, the context in which the statement was made, the surrounding circumstances, previous behaviour of the child, opportunities for the child to have knowledge from other sources, any knowledge, as in this case, of a child’s predisposition to tell untruths or to fantasise, are among the relevant considerations.

The most recent case to warn of the need to treat hearsay with caution is found in the judgment of the President in Re A (A Child) [2015] EWFC11, where he commented at paragraph 9:

…the local authority, if its case is challenged on some factual point, must adduce proper evidence to establish what it seeks to prove. Much material to be found in local authority case records or social work chronologies is hearsay, often second- or third-hand hearsay. Hearsay evidence is, of course, admissible in family proceedings. But, and as the present case so vividly demonstrates, a local authority which is unwilling or unable to produce the witnesses who can speak of such matters first-hand, may find itself in great, or indeed insuperable, difficulties if a parent not merely puts the matter in issue but goes into the witness-box to deny it. As I remarked in my second View from the President’s Chambers, [2013] Fam Law 680:

“Of course the court can act on the basis of evidence that is hearsay. But direct evidence from those who can speak to what they have themselves seen and heard is more compelling and less open to cross-examination. Too often far too much time is taken up by cross-examination directed to little more than demonstrating that no-one giving evidence in court is able to speak of their own knowledge, and that all are dependent on the assumed accuracy of what is recorded, sometimes at third or fourth hand, in the local authority’s files.”

It is a common feature of care cases that a local authority asserts that a parent does not admit, recognise or acknowledge something or does not recognise or acknowledge the local authority’s concern about something. If the ‘thing’ is put in issue, the local authority must both prove the ‘thing’ and establish that it has the significance attributed to it by the local authority.

Civil Evidence Act 1995

Section 4 sets out what considerations may have an impact on the weight of hearsay evidence

  • whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;
  • whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;
  • whether the evidence involves multiple hearsay;
  • whether any person involved had any motive to conceal or misrepresent matters;
  • whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;
  • whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.

Forced Adoption: We need to talk about this

This is a post by Sarah Phillimore

The Latvian Intervention

I can only hope that these discussions will assist to shine a light where it is needed – and not to encourage the rhetoric and clumsy propaganda of either side of the ‘forced adoption’ debate. Because that way we are all losers, but the children most of all. 

Owen Bowcott, writing in the Guardian in March 2015, described the situation:

Latvia’s parliament has formally complained to the House of Commons that children of Latvian descent are being illegally and forcibly adopted by British families.

The extraordinary intervention by foreign MPs in the way social services take children into care comes as the Baltic state has been granted permission to give evidence during an appeal over the case of a six-year-old girl who has been removed from her mother. It is due to be heard this month.

Other eastern European countries have also raised concerns about British adoption procedures, sometimes in cases where children have been born to mothers who have been trafficked into the country for the purposes of prostitution. In one case, Nigeria also expressed concern.

The child at the centre of Latvia’s intervention was first put into care in 2012 after being found at home alone, aged 21 months. Both her parents are Latvian; her father remains in their homeland.

The mother, according to an earlier judgment, had previously been found drunk, walking barefoot with her daughter in a buggy in the middle of a road in the south London borough of Merton.

The mother disputes the local authority’s assessments and the allegation that she was inebriated; she is now challenging the adoption of her child. Her lawyers have complained that the six-year-old was put in non-Russian speaking foster care which has delayed her language development.

Challenge in the courts

The mother has made various legal challenges to every stage of the adoption process. The Judgement of one such challenge in 2013 is here. Her most recent challenge has also failed. The judgment of the Court of Appeal is here.

Of note are the conditions in which the child was discovered at paragraph 6 of the judgment. This was described by a Latvian politician speaking on the Today programme on 13th August as a ‘mistake’ made by the mother and that ‘we all make them’.

I then heard a whimpering sound from a door directly in front of me. Once I had opened the door, I saw a room. In the left-hand corner of the room was a wardrobe and there were toys all over the floor. In the right-hand corner of the room against the window was a double bed that looked very soiled. On the wall beside the bed was a large area of damp and the wallpaper was coming away. There was a very strong and overpowering smell of urine and faeces in the room. I saw the child curled in an almost foetal position on the bed lying on a pillow. She sat up when we came into the room and she was holding an empty pink bottle. I went towards the child and she stood up and came towards me. I saw that her clothes were wet and that she was wearing a nappy that was falling off between her legs. Once in a different room, I could see that the child’s clothes were wet and she was shivering. The strong smell was coming from her and it was clear that she had not been changed or cleaned all day. I removed the child’s nappy to find dried and fresh faeces. The nappy was so swollen with urine that the child was unable to walk properly. There were also dried faeces on the child’s body and her skin was soaked in urine that had leaked from her nappy and gone through her clothes.

England and Wales needs to bring itself into line?

Part of the mother’s argument was that the law in England and Wales is simply ‘out of step’ with the rest of Europe:

“Most countries in Europe do not have a policy of “forced adoption.” As they do not, then the jurisdiction of England and Wales needs to be brought further in to line with the rest of Europe.”
This is elaborated by the mother in her skeleton argument with the assertion that if this case had been heard in another European jurisdiction, then a different solution would have been found. She says that other European countries have a greater understanding of familial ties, whereas in this country, she says, too little weight is attached to the child’s biological, national, ethnic and cultural inheritance. She says that this country should consider that it may be causing or permitting too many children to be adopted, and is out of line with the rest of Europe. Whilst accepting that there is a margin of appreciation, she says that this country is so far out of step with the rest of Europe that it needs to bring itself into line. She refers to the observations of Mostyn J in Re D (Special Guardianship Order) [2014] EWHC 3388 (Fam), [2015] 2 FLR 47, para 35, and to what Holman J said in A and B v Rotherham Metropolitan Borough Council [2014] EWFC 47.

The President responded to this argument at paragraph 80:

I am acutely conscious of the concerns voiced in many parts of Europe about the law and practice in England and Wales in relation to what is sometimes referred to as ‘forced adoption’ but which I prefer, and I think more accurately, to refer to as non-consensual adoption. Manifestations of these concerns are to be found both in the Borzova Report and in the letter from the Saeima of the Republic of Latvia to which I referred in paragraph 39 above. I refer also to the fact that at its meeting on 19-20 March 2014 the Committee on Petitions of the European Parliament considered and declared admissible a petition by LB making allegations about the local authority’s behaviour in the present case. It would not, however, be appropriate for me to say anything more about that particular matter.
I refer in this connection to what I said in In re E (A Child) (Care Proceedings: European Dimension) Practice Note [2014] EWHC 6 (Fam), [2014] 1 WLR 2670, [2014] 2 FLR 151, paras 13-15:
“13 Leaving on one side altogether the circumstances of this particular case, there is a wider context that cannot be ignored. It is one of frequently voiced complaints that the courts of England and Wales are exorbitant in their exercise of the care jurisdiction over children from other European countries. There are specific complaints that the courts of England and Wales do not pay adequate heed to BIIR and that public authorities do not pay adequate heed to the Vienna Convention.
14 In the nature of things it is difficult to know to what extent such complaints are justified. What is clear, however, is that the number of care cases involving children from other European countries has risen sharply in recent years and that significant numbers of care cases now involve such children. It is timely therefore to draw the attention of practitioners, and indeed the courts, to certain steps which can, and I suggest from now on should, be taken with a view to ameliorating such concerns.
15 It would be idle to ignore the fact that these concerns are only exacerbated by the fact that the United Kingdom is unusual in Europe in permitting the total severance of family ties without parental consent … Thus the outcome of care proceedings in England and Wales may be that a child who is a national of another European country is adopted by an English family notwithstanding the vigorous protests of the child’s non-English parents. No doubt, from our perspective that is in the best interests of the child – indeed, unless a judge is satisfied that it really is in the child’s best interests no such order can be made. But we need to recognise that the judicial and other State authorities in some countries that are members of the European Union and parties to the BIIR regime may take a very different view and may indeed look askance at our whole approach to such cases.”

The law of England and Wales is NOT incompatible with the ECHR

But what is very clear is that the UK laws are NOT incompatible with the ECHR. The extent of the UK’s violations of the ECHR is set out in this helpful infographic from Rights Info.  It is ironic to find ourselves criticised by, for example, Slovenia –  which has the highest number of violations of fundamental rights of all members of the Council of Europe. Only 3% of cases bought to the European Court involve the UK.

The President commented at paragraph 83 of his judgment:

The second point is that, whatever the concerns that are expressed elsewhere in Europe, there can be no suggestion that, in this regard, the domestic law of England and Wales is incompatible with the United Kingdom’s international obligations or, specifically, with its obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms. There is nothing in the Strasbourg jurisprudence to suggest that our domestic law is, in this regard, incompatible with the Convention. For example, there is nothing in the various non-consensual adoption cases in which a challenge has been mounted, to suggest that our system is, as such, Convention non-compliant.

Sanchia Berg described the reaction of a Latvian politician:

Latvian MP Ignor Pimenov, said he found it hard to understand how a country “with high moral standards” could act in this way.
He believes this is not a unique case and said he had been contacted by several other Latvian women in the UK whose children had been taken into care.
“I can see there is something behind it… but families have been ruined,” he said.

What do we need to do?

Recent posts on this site and elsewhere have highlighted the current levels of ignorance about what actually happens here and abroad. What is not controversial is that there are children who need to be rescued from their parents and that there are state officials who either do not understand or misapply the law. The failures of the latter do not negate the need to protect children or render all parents blameless.

Do the mistakes or even deliberate malice of some individuals mean that there is a conspiracy to ‘snatch’ children from blameless, loving homes and ‘put them up’ for adoption? We have argued ‘no’. But there are many who disagree.

As a society we have an urgent need for better and more honest debate about this.

  • What support are families getting or should they be getting, to reduce the need for their children to be ‘rescued’ ?
  • When and how should the state intervene to carry out this ‘rescue’?
  • What should be the consequences when the state get it wrong? What redress could or should parents be given?

As Joshua Rozenberg commented in the Guardian:

This is not a case about whether the Latvians have been denied jurisdiction over one of their citizens. This is a case about what is in the best interests of a seven-year-old girl who was born in England and rescued from what a judge described as “appalling” neglect. Until she grows up, it must surely be better for CB to stay just where she is.

The current state of the debate, based on hyperbole, inaccuracy and massive distrust,  is unlikely to assist any process of reform, particularly not when politicians in other countries are now adding their critical voices and their refusal to accept the initial judgments of the UK courts.

There is a danger that the pendulum will swing again, back to focus on the ‘rights’ of parent, with the consequent loss of understanding or appreciation of what some children suffer. The ‘family’ is not always a haven of safety and security.

I can only hope that these discussions will assist to shine a light where it is needed – and not to encourage the rhetoric and clumsy propaganda of either side of the ‘forced adoption’ debate. Because that way we are all losers, but the children most of all.

EDIT – appeal to Supreme Court refused and Adoption Order made.

The judgment of Moylan J in October 2015 made an adoption order and brought these proceedings finally to a close. He set out at paragraph 8 the reasons why the Supreme Court had refused the mother’s application to appeal. They held her appeal had ‘no prospect of success’ commented that it relied upon the following as facts:

i. In March 2010 the mother left CB alone at home in a disgusting condition and Merton began to accommodate her. The circumstances of that incident were fully investigated by the District Judge in July 2012 who disbelieved the mother’s account. He decided that CB should be placed for adoption and that the mother’s consent be dispensed with.
ii. The mother brought two unsuccessful appeals against his orders. In the present proceedings the mother is not entitled to challenge the District Judge’s findings nor, by her addendum ground, the conclusion in the second appeal that Merton had been entitled to hold the adoption panel meeting on 9th March 2012.
iii. In view of her contentions that Merton was trying to meet a higher target for adoptions and was therefore “biased”, the mother should note that it was the court, not Merton, which took the decision to authorise the placement of CB for adoption.
iv. In May 2013, following the dismissal of the second appeal, CB was placed with the prospective adopters. So she has lived with them for almost 2½ years. She last saw the mother in March 2013.
v. The adopters would have understood that the path to CB’s adoption was clear. Instead there has been a prolonged challenge to her placement with them, supported with all the authority of the Latvian State. The pressure to date on the adopters, and indirectly on CB, is obvious.
vi. Moylan J accepted evidence that CB was at risk of significant emotional harm if removed from the adopters. It is not arguable that it would be in her interests to be removed from them at this late stage and to be placed wherever the Latvian Court might direct.
vii. The loss of CB’s national and cultural identity is a substantial factor and was rightly weighed by Moylan J. He held however that it was outweighed by other aspects of her welfare and this court would not disturb his assessment.

Attachment Theory – the Basics

We are grateful to Kate Wells for this piece outlining the basics of ‘attachment theory’. This is a very important concept in care proceedings as often conclusions reached about a child’s attachment or lack of will be very influential in determining the direction of a case. But it is often  a concept which seems poorly understood and misapplied by many. 

I think it is absolutely essential that social workers have a basic understanding of attachment theory and the importance of the early relationship between baby and mother (again used as shorthand) from the first moments of birth, and even in utero as there is evidence that babies can be adversely affected if there is tension, hostility, domestic violence etc., and how this insecure attachment pattern will affect the children as they grow through the ages and stages of childhood.

Attachment theory in psychology originates with the seminal work of John Bowlby (1958). In the 1930’s John Bowlby worked as a psychiatrist in a Child Guidance Clinic in London, where he treated many emotionally disturbed children. This experience led Bowlby to consider the importance of the child’s relationship with their mother in terms of their social, emotional and cognitive development. Specifically, it shaped his belief about the link between early infant separations with the mother and later maladjustment, and led Bowlby to formulate his attachment theory.
Evolutionary theory of attachment (e.g. Bowlby, Harlow, Lorenz) suggests that children come into the world biologically pre-programmed to form attachments with others, because this will help them to survive. The infant produces innate ‘social releaser’ behaviors such as crying and smiling that stimulate innate caregiving responses from adults. The determinant of attachment is not food but care and responsiveness.

Bowlby suggested that a child would initially form only one primary attachment (monotropy) and that the attachment figure acted as a secure base for exploring the world. The attachment relationship acts as a prototype for all future social relationships so disrupting it can have severe consequences.

This theory also suggests that there is a critical period for developing an attachment (about 0 -5 years). If an attachment has not developed during this period then the child will suffer from irreversible developmental consequences, such as reduced resilience and aggression
I don’t propose to give any further background details as there is so much more information since Bowlby’s works in the 1950s that it would be a mammoth task and as my aim is to provide some very BASIC information on attachment theory, further detail would not be helpful.

However there is a huge amount of published information on Attachment Theory readily available for anyone wishing to gain a greater understanding of the theory.

I do NOT claim to be any sort of expert in this theory, although I do have a basic understanding of the theory and have in the past been involved in collaboration with a clinical psychologist and play therapist, in delivering training to prospective foster carers and adopters.

 

‘Attachment’ is often used in a meaningless way

The word “attachment” is often used by social workers in my experience in a way that is meaningless e.g. “He’s attached to his mother” I ask “In what way?” and the usual response is along the lines of “well he goes to her at contact and isn’t upset by seeing her…” I then ask “Is he upset when the mother leaves at the end of contact?” “Oh no, he’s fine, sometimes he waves bye bye” Hence there is a misunderstanding of attachment theory. The word is used in almost the same way as “I am attached to these old slippers.” We read of “strong” attachments, “good” attachments, and even “solid” attachments. Sometimes the term “bonding” is used in much the same way we read “There is a good bond between X and his mother.”

Incidentally I am using the term “mother” as shorthand, but of course it could be father or any other caregiver.

Attachment theory holds that within close relationships young children acquire mental representations or internal working models of their own worthiness based on other people’s availability and their ability and willingness to provide care and protection (Ainsworth et al 1978).

 

Attachments can be SECURE or INSECURE/ANXIOUS

A SECURE attachment pattern between baby and mother develops when the mother has an ability and willingness to try to understand behaviours and emotions from her baby’s point of view. She is attuned to his needs, e.g. responds to his crying by picking the baby up and soothing him, either by feeding, or changing him, or simply holding him. She learns to differentiate his cries, sometimes hunger, pain, boredom, tired etc and responds appropriately. She talks to the baby, maybe sings to him and smiles at him and as the baby grows she is rewarded by his response, in that he smiles back and they can engage in “conversation” e.g. the baby “coos” and laughs/gurgles in response to the mother’s attention and often tries to mimic her sounds. Within this attuned, coordinated relationship, the baby learns to regulate his own feelings and behaviours. The mother’s love is unconditional, and this provides the growing child with a sense of security and trust in his mother (often referred to as his attachment figure)

Babies can of course have secure attachment patterns with fathers, and other adults, so long as those adults are able to be emotionally available to the child (as outlined above) as well as physically present.

A secure attachment pattern will be a protective factor for the child throughout the lifespan. He will have learned that he is loved, effective, autonomous and competent and will have an expectation that other people will be available, co-operative and dependable, as he progresses through life.

INSECURE/ANXIOUS ATTACHMENTS.

These attachment patterns are broken down into Avoidant or Ambivalent attachments. Children who show these insecure attachment patterns have learned that there are conditions attached to their gaining proximity to their mother.

Interestingly these children develop appropriate strategies that a) increase the mother’s emotional availability and do not cause her to withdraw and b) bring care and protection. These strategies are of course devised for survival and can be effective, but the feelings of anxiety and insecurity remain in relation to the mother.

However both secure and insecure attachment patterns represent efforts by children to ORGANISE their behaviour, to achieve some kind of proximity to their mother and with it a “felt security” – and when there is an insecure attachment pattern, these behaviours in children have varying degrees of success.

AVOIDANT ATTACHMENT

This attachment pattern is sometimes referred to as dismissive. The mother (or parents) of these babies are often rejecting and controlling. If the baby cries it annoys or agitates the parents, and they lack sensitivity to the child, are unreliable and largely disinterested in the baby. These babies are often “prop fed” a bottle put into their mouth propped up by a towel (or something similar) while they are lying in the pram. The parents do not get any pleasure from the baby.

Hence at times when the baby is in need of comfort, care, protection, and this is manifested by crying, clinging, following, demanding, it actually brings the opposite reaction to what the child needs, in that the parents are rejecting or controlling.

The child’s strategy in this attachment pattern is often to minimise their needs and deny or not communicate their distress. Strong feelings are defensively excluded and emotional self-containment is established. This allows the child to stay in reasonable proximity to the attachment figure without causing him or her too much irritation, thus reducing the chances of being rejected. This strategy can be seen as the psychological defence of flight, rather than fight, e.g. a child may sit close to his mother, gradually moving nearer and if not rejected, attempting some kind of physical contact. Maybe they sit on the floor next to their mother’s chair, and then stand up and lean on the arm of the chair, and eventually chance getting into a mild form of physical contact e.g. putting their arm around their mother or laying their head on her arm. If they are not rejected they may try to sit on their mother’s lap and if the mother is not rejecting but not responsive either, the child will usually remain as long as possible.

These children are often described by foster carers and adopters as difficult to “reach” emotionally, “detached” “can’t make him out” “never know what he’s thinking” and in extreme cases, unable to show any affection other than very superficially. One adopter described her child as “fine on the outside, mostly pleasant and co-operative, but “hollow” – he has no middle.” Emotional self-containment was learned very early on in his life as a way of survival.

 

AMBIVALENT ATTACHMENT

This attachment pattern forms when parents are insensitive, unreliable and inconsistently responsive. Children very often adapt the psychological defence of fight, and show angry behaviour, crying, whining, fretting, clinging, demanding, shouting and tantrums. This is an attempt to break through the emotional neglect, unavailability and lack of responsivity. Needless to say this generally doesn’t bring the desired response, and these children grow up feeling that they are not worthy of automatic interest. Other adults are seen as inconsistent and not always able to soothe and provide comfort. These children grow up to be particularly vulnerable to stress and are very frustrated (sub consciously of course) that the mother is emotionally desired but emotionally unreliable. At any one times these children’s relationships with their mother are guided by strong feelings of either love or anger.

It’s important to recognise that even when children are insecurely or anxiously attached to their mother, they can adapt their behaviour (or organise themselves) in an attempt to get physically and emotionally close to their attachment figure, with varying degrees of success.

There is however a type of insecure attachment that is so severe that children are unable to organise their behaviour or develop a defensive strategy to achieve proximity or security, and their distress remains heightened and unregulated. The parents of these children are often dangerous (abusive) or emotionally unreachable because of severe mental illness, and/or abuse of drugs and alcohol. If one parent is the abuser, the other fails to protect. Children are severely neglected and/or abused. Without an organised strategy children may freeze, either physically or psychologically. These children have an attachment disorder and are going to need a great deal of understanding and resilience by the foster carers or adopters, who have a full understanding of how their early life experiences have affected these children.

By definition therefore ALL children who are removed from their parents by a Court Order are going to have one type or another of insecure or anxious attachments with their mother or parents/step-parents.

Frozen Awareness

I appreciate that this notion of babies and children being able to organise their behaviours in order to get the best they can from their mothers, might seem strange, even bizarre. However I have observed this happening and it can be very chilling. I remember reading about “frozen awareness” in a very young child and was I admit sceptical, until I actually saw a 4 month baby lying quiet and still in the pram but with eyes wide open, like a rabbit caught in the headlights, fearing (quite rightly) that danger was nearby. I was to see this many more times, but the memory of that first baby has never left me. The step-father had been shaking the baby and twisting her arms (this was relayed to me by the mother who had a mild learning difficulty and was afraid of her partner.) Fortunately the court agreed that the baby should be removed and she was subsequently adopted and thrived in the care of the adopters.

Likewise I have seen the “frozen” child crouched in the space between his bed and the wall. This was a little boy not yet 2 years, and the bruising to his face and ears was very visible. When I picked him up the child was rigid, frozen, traumatised. I have observed toddlers sitting still on a chair, casting fearful glances at the abuser, again keeping very quiet so as not to attract the attention of the abuser. These are definite strategies that the child sub-consciously employs for survival.

I recall a 6 year old boy after a phone call from his mother, dancing around the room of the foster carer, repeatedly calling out “she loves me, she loves me” – clearly the mother had said this to him on the phone and it may well be the first time that the child had heard this from his mother and his delight was both sad but very moving. When one of the foster carer’s older children returned home, the little boy immediately pounced on him and said “my mom loves me….” And of course the older child looked bewildered, failing of course to understand the significance of the little boy’s delight.

Obviously I could go on to give many more examples but I don’t think that is necessary.

 

Attachment patterns throughout childhood

Looking at attachment patterns through the ages and stages of childhood Robert Karen (Becoming Attached) provides a chart of typical patterns of secure and anxious attachment. Before doing so he makes a very important point:

The following chart is meant only as a convenient guide and does not take into account many of the complexities and exceptions found in the research. It should be remembered that insecure attachments (avoidant and ambivalent) is not always associated with the style of parenting described here, but can sometimes come about for other reasons; that a child often has a different pattern of attachment to mother and father; and that attachment patterns can change, so that while many avoidant babies for example, continue in their early pattern, others do not end up behaving like an avoidant 6 year old or develop later into a dismissive adult and parent.

I believe this is largely because these babies are adopted at a young age and the adopters have a good understanding of attachment theory and practice, and can therefore help the child to develop a secure attachment pattern. This takes time, patience and resilience. The adopters need to understand that there will be a gap between the child’s emotional and chronological age, (sometimes called arrested development) and that they will need to allow the child to regress and gradually gain confidence and a sense that he is in fact loved and valued by his parents, and this is unconditional.

Robert Karen’s chart is extensive and so I don’t propose to reproduce it in full. But he describes a secure attachment pattern between mother and baby – mother is warm, sensitively attuned, and consistent. Readily attends to baby’s cries. Baby readily explores, using mother as secure base, compliant with mother. Pre-school: easily makes friends, popular, resilient under stress, good self esteem. Teachers treat him in warm, matter of fact, age appropriate way. Aged 6 with parents: Warm and enthusiastic, comfortable with physical contact. Middle childhood: Forms close friendships and is able to sustain them in larger peer groups. In adulthood: Easy access to wide range of feelings and memories, positive and negative. Balanced view of parents. If insecure in childhood has worked through hurt and anger. Usually has securely attached child.

Avoidantly attached baby. Mother is often emotionally unavailable or rejecting. Dislikes neediness, may applaud independence. By end of 1st year baby seeks little physical contact with mother, randomly angry with her, unresponsive to being held, but often upset when put down. Pre school: Often angry, aggressive, defiant, may be isolated/disliked by peers. Teachers become controlling and angry. Age 6 with parents: Abrupt, neutral, unenthusiastic exchanges. Absence of warm physical contact. Middle childhood: No close friends or friendships marked by exclusivity, jealousy. Often isolated from group. In adulthood: Dismissing of importance of love and connection. Often idealises parents, but actual memories don’t corroborate. Shallow if any self-reflection. Usually has avoidantly attached child.

Ambivalently attached baby: Mother is unpredictable or chaotic. Often attentive but out of sych with baby. Baby cries a lot, is clingy, demanding, often angry, upset by small separations, chronically anxious in relation to mother. Limited in exploration. Pre School: Fretful and easily over whelmed by anxiety. Immature, overly dependent on teacher, maybe be bullied. Teachers indulge, excuse, and infantalize. Age 6 with parents: Mixes intimacy seeking with hostility. Affectedly cute or ingratiating. May be worried about mother when apart. Middle childhood: Trouble functioning in peer groups. Difficulty sustaining friendships when in larger groups. In adulthood: Still embroiled with anger and hurt at parents. Unable to see own responsibility in relationships. Dreads abandonment. Usually has ambivalently attached child.

WHAT THEN DOES ALL THIS MEAN FOR SOCIAL WORKERS IN THEIR WORK WITH CHILDREN WHO HAVE INSECURE/ANXIOUS ATTACHMENTS WITH MOTHERS, FATHERS, STEP-PARENTS/CAREGIVERS.

I think it is absolutely essential that social workers have a basic understanding of attachment theory and the importance of the early relationship between baby and mother (again used as shorthand) from the first moments of birth, and even in utero as there is evidence that babies can be adversely affected if there is tension, hostility, domestic violence etc., and how this insecure attachment pattern will affect the children as they grow through the ages and stages of childhood. They need to understand that attachment patterns are secure or insecure/anxious, not “strong” or any of the other adjectives that are often used. However it is only by observing the interaction between the mother and child that can demonstrate the attachment pattern. Having said that, great care should be taken not to jump to conclusions, and indeed I don’t think it fair that social workers should be expected to determine the exact attachment pattern between mother and child. This is more the work of clinical psychologists and play therapists, often working collaboratively.

The other important point is that LAs should make it a priority to ensure that all prospective and approved foster carers and adopters are given the opportunity to learn about attachment theory and practice. These children with insecure attachment patterns, or an attachment disorder are going to be in their care, and it can only be positive for them to have an understanding of the reasons for the child’s often difficult and challenging behaviour.

Adopters need to know that “love is not enough” (a commonly held view, and not unreasonable) but the child who has an insecure/anxious attachment with his mother, or an attachment disorder is going to prove a huge challenge for the adopters, especially in the case of the attachment disordered child. Indeed these children should be able to receive play therapy and the adopters should be assisted/guided by the therapist as to the best way of caring for the child, to enable the adverse effects of his early life to be minimised, and for him to begin to feel loved and valued for who he is, and that love and care is not conditional. There is no “quick fix” and sadly LAs are so cash strapped that they are highly unlikely to pay for play therapists. Some LAs have clinical psychologists who are able to offer training on attachment to social workers, managers, foster carers and adopters.

Many foster carers and adopters in the LA in which I worked said that it was “like the scales falling from their eyes” as they recognised the child who was insecurely attached to his mother, and the behaviours that were manifested as a result. Many of them went on to read and study the topic further and in turn were able to share their knowledge with other foster carers and adopters.

REPORT WRITING.

I have only been able to give a very basic introduction to the topic in this piece, and it is not within the social worker’s remit in my view to be able to define the particular type of insecure attachment pattern between mother and child in written or oral evidence in court. To do so would require a thorough understanding of the topic in order to be credible and able to handle cross examination.

I think the best way of dealing with this matter is for social workers to talk of children who have “learned that adults can’t always be trusted to care for them” and be able to give an example of a mother not attending to the cries of the baby or failing to give him attention and this in turn causing the baby to feel insecure and anxious, and these feelings may well persist throughout his childhood and into adulthood. I am sure a lawyer acting for birthparents would challenge such an assertion and this could be problematic for an inexperienced social worker who was nervous in court in any event.

I once had a barrister say something like “So you’re saying Ms W that unless a baby is picked up the moment he cries, his future is doomed to failure – is that what you’re saying….” I was experienced and competent enough to deal with this kind of comment, but I can imagine it could be intimidating for a newly qualified social worker.

This piece is far longer than I anticipated but I hope it has provided a very basic understanding of the importance of the mother/child relationship and what can go wrong in the absence of a secure attachment pattern established between mother and child. ……………..Kate Wells.

 

Further reading

See the guidelines from NICE published in November 2015: Children’s attachment: attachment in children and young people who are adopted from care, in care or at high risk of going into care.

For what reasons do other countries allow adoption without consent?

We are grateful for this helpful summary of the position in other EU Member states from Claire Fenton – Glynn. See further her post, We are not alone: Every European country permits adoption without parental consent. 

ANNEX III: COMPARISON OF GROUNDS FOR ADOPTION WITHOUT CONSENT IN EU MEMBER STATES

Abandonment or Lack of Contact with Child

Deprivation of Parental Rights

Dispensing with Consent

  • AUSTRIA Whereabouts or residence unknown (6 months) Refusal of consent without justification
  • BELGIUM Parent has lost interest in the child, deprivation of parental rights; has compromised his or her health, safety or morals
  • BULGARIA Resident in a foster home or institutional care, and parent has not requested the termination or modification of this measure and the return of the child (6 months) Parents continuously fail to provide care for the child, do not provide financial support, or raise and educate the child in a manner harmful to its development.
  • CROATIA Abandoned the child, lost the right to parental care
  • CYPRUS Abandoned or neglected the child, neglect or persistent mistreatment. Unreasonably withholding consent
  • CZECH REPUBLIC Not manifested a proper interest (6 months) Not trying to rectify their family and social condition within the limits of their possibilities so that they can personally care of the child (6 months)
  • DENMARK Deprivation of parental rights If dispensing with consent it is of decisive importance to the welfare of the child
  • ENGLAND AND WALES If dispensing with consent is in the best interests of the child
  • ESTONIA Whereabouts or residence unknown (for “an extended period of time”) Deprivation of parental rights
  • FINLAND If the refusal is not sufficiently justified taking into account the best interests of the child
  • FRANCE Manifest disinterest (12 months) Risk of compromising the child’s health or morals Abusively withholding consent
  • GERMANY Shown through conduct to be indifferent to the child Persistently grossly violating parental duties Where it would be disproportionately disadvantageous to the child if the adoption did not take place
  • GREECE Deprivation of parental rights
  • HUNGARY Not contacting the child (12 months)
  • IRELAND Parents failed in their duty towards the child (12 months)
  • ITALY Abandonment: lacking the moral and material care of their parents
  • LATVIA Treat the child especially badly or does not care of the child or does not ensure the supervision of the child and it may endanger the physical, mental or moral development of the child.
  • LITHUANIA Parental authority restricted for an unlimited period
  • LUXEMBOURG Manifest disinterest (12 months) Lost their parental rights
  • MALTA Unjustifiably not having contact (18 months) Neglect or persistent mistreatment Unreasonably withholding consent
  • NETHERLANDS Have not, or hardly, lived together, abuse of parental authority or grossly neglected duties to care for the child
  • NORTHERN IRELAND Abandoned or neglected the child, persistently failed in duties towards the child, has persistently ill-treated, or seriously ill-treated the child, withholding consent unreasonably
  • POLAND Deprived of parental authority If refusal is clearly contrary to the child’s welfare
  • PORTUGAL Not showing interest (3 months) Deprived of parental authority
  • ROMANIA Abusively refusing to give consent, and adoption is in the child’s best interests
  • SCOTLAND Unable to satisfactorily discharge parental duties
  • SLOVAKIA Systematically did not manifest proper interest (6 months) Deprivation of parental rights
  • SLOVENIA Whereabouts or residence unknown (12 months) Parental rights have been take away
  • SPAIN Deprived of parental authority
  • SWEDEN Where a parent has no share in custody