Author Archives: Sarah Phillimore

Recommendations to the institutions of the European Union

Set out below are the recommendations of Dr Claire Fenton-Glynn in her study submitted to the European Parliament in June 2015; ‘Adoption without consent’

The full study is an excellent and clear guide to existing law and practice.

Recommendations to the institutions of the European Union

Co-operation between member states in cross border cases

  • That a guide to good practice be drawn up by the European Union concerning cooperation between Member States under the “Brussels II a” Regulation, and in particular focusing on:
    • Guidance for child protection services in dealing with cross-border cases;
    • Providing information on the workings of child protection systems in different Member States;
    • Setting out guidance as to the correct test for asking another state to assume jurisdiction under article 15.
  • That consideration be given to strengthening the provisions of the “Brussels II a” Regulation, including:
    • Placing a duty to inform foreign authorities of child protection proceedings before the court be made mandatory, unless the safety or welfare of the child demands otherwise;
    • Including a common, autonomous understanding of habitual residence, as defined by the Court of Justice of the European Union;
  • Strengthening cooperation in cases of placement of a child in another jurisdiction under article 56, including:
    • Creating a specific mechanism for a request for transfer to be made under the Convention;
    • Setting clear rules for when a transfer should take place, and what factors should be considered.

To encourage greater understanding between Member States

  • That a greater understanding is encouraged between Member States of the different approaches to child protection. In particular:
    • That research be undertaken concerning different forms of public care be used in each jurisdiction, including both short-term and long-term care options;
    • That statistics and information be compiled concerning the outcomes for children in different forms of public care in different jurisdictions;
    • That statistics be compiled concerning the number of adoptions in each jurisdiction, disaggregated by age, gender, reasons for adoption, ethnic and religious minority status, immigration status and socio-economic background, and whether parental consent had been given;
    • That statistics be compiled concerning successful reunifications of the child with their birth family, following a period in state care.

 

Recommendations to the UK Government

Proper allocation of resources, training and staffing

  • That adequate financial and human resources be allocated to local authorities to be able to fulfil their duties in relation to child protection, and that such services be protected in times of austerity.
  • The government must ensure that social services are adequately staffed with qualified personnel who are paid appropriately for their work. That families continue to be provided with assistance where they are experiencing difficulty, in order to prevent, where possible, children being taken into public care. In particular:
    • Authorities should ensure that all families are able to practically access offered services, and that language is not a barrier in this respect.That the right of the child to communicate in their own language with their family be recognised, including: that children be permitted to communicate with their parents and family members in their native language; that adequate resources be allocated to ensure that appropriately qualified interpreters are available for the purposes of the social worker.

 

Improve the outcomes for children in care and promote open adoption

  • That greater emphasis be placed on improving the outcomes for children in public care, and developing alternatives to adoption for children who cannot return to their families.
  • Where adoption is necessary, emphasis should be placed on establishing open adoptions, and ensuring post-adoption contact between the child and his or her birth family, unless this is contrary to the child’s best interests.
  • The complete severance of all legal and social ties between a child and their birth family should only be considered in the most severe and exceptional circumstances, which are not necessarily present in all cases where a child cannot return to their birth family.
  • That despite the removal of the explicit requirement to consider the child’s cultural and linguistic origins, local authorities continue to give due consideration to the child’s needs and background, and place the child in a compatible placement wherever possible. This factor should be given particular importance where the child has a connection with another jurisdiction.
  • That disaggregated data be compiled concerning the frequency with which children from other EU member states are taken into public care, and the rate at which they are placed for adoption.

 

Development of good practice regarding co-operation with foreign authorities

  • That the good practice set out by the President of the Family Division in relation to cooperation with foreign authorities be included in Practice Directions for the court. In particular, the following should be emphasised:
    • That there should be no obstacle imposed on free communication and access between a party who is a foreign national, and the authorities of the relevant foreign state;
    • That permission be granted for accredited consular officials to be present at hearings as observers in a non-participatory capacity;
    • That permission be granted for an accredited consular official to obtain a transcript of the hearing, a copy of the order and copies of other relevant documents.
    • That social workers be given training on the appropriate steps to be taken when working on a case involving a child, parents, or potential carers in another jurisdiction. Such training should include knowledge of the relevant guidance set out by the Department of Education, and involve:
      • Ensuring that when carrying out an assessment of a child, where he or she has links to a foreign country, local authorities consider engaging with social work authorities in the other jurisdiction in order to understand the child’s case history and/or to help them to engage with the family;
      • When a child with links to a foreign country becomes the subject of a child protection plan, has required immediate protection, or is made subject to care proceedings, the social worker should consider informing the relevant foreign authority, unless doing so is likely to place the child or family in danger; and
      • Ensuring that potential carers and care in the foreign jurisdiction are adequately considered.
    • That greater knowledge of the provisions of the “Brussels II a” Regulation be promoted amongst legal and child protection professionals, in particular concerning the division of responsibilities under that instrument, including:
      • That requests under the Regulation must be clearly focused on one or more of its provisions and must be distinguished from requests for evidence which must be made under the Evidence Regulation;
      • That the agency given primary responsibility for cooperation and communication under the Regulation is the Central Authority;
      • That Central Authorities, and other foreign State Agencies, are under no obligation, and cannot be placed under any obligation, to comment on or become engaged in proceedings in England;
      • That courts of other Member States are under no obligation to make a request under article 15, the obligation being on the courts of England and Wales;
      • That embassies and consular officials are given no role under this Regulation, and should not be used as proxies for Central Authorities.

 

Continuing recognition of the importance of transparency

  • That there continues to be recognition of the importance of transparency in the family justice system, including:
    • Ensuring open and public debate in the media;
    • Allowing parents to express their views publicly about their experiences, while recognising the need to protect the child’s best interests;
    • Providing clear and easily accessible information to parents concerning their rights in this respect, while also highlighting the reasons why the child’s identity cannot, and should not, be revealed.

Judicial Bias

 

 

 

 

What can I do if I think the Judge has treated me unfairly?

Judges are human beings and therefore can make mistakes and get things wrong. It is possible that the Judge in your case has treated you unfairly and made decisions about your case which are not based on the evidence, but are instead a reflection of that Judge’s bad mood on the day.

In some circumstances a Judge should definitely not continue to hear a case and you would expect the Judge to recognise this from the outset – for e.g. if the judge is related to or married to any party to the case or has previously acted as a lawyer in the case.

This post will consider what happens when you are worried that a Judge is biased against you. How can you show that this happened, and what are your remedies?

Establishing Judicial Bias

This is an objective test – would the Judge appear biased to an informed observer? It is very important that court proceedings are seen to be fair. 

Tribunals must appear in an objective sense to be truly independent and impartial. This perception is essential to maintaining public confidence in the judiciary and the legal system as a whole. The legal system is a central social good in any successful state. Its substantive, as well as apparent, integrity is an important matter.

The House of Lords (now known as the Supreme Court) considered the test for establishing judicial bias, in the case of Porter v Magill [2002] AC 357. Lord Bingham said at paragraph 106 that the essential question was:

…whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.

This test was confirmed as still good law by the Court of Appeal in the case of Harb [2016] EWCA Civ 556 (mentioned below).

For example – was the Judge rude to you? Did the Judge refuse to let you ask questions or speak about something you thought was relevant? This could be an example of a Judge acting unfairly – but you will need to consider carefully the Judge’s duty to actively manage the cases in his/her court, which we discuss below.

The case of G (Child) [2015] EWCA Civ 834 is a good example of how a judge was found to be acting unfairly from the nature and quality of her interventions and criticism of counsel. The Court of Appeal commented at para 38:

As I have said, the fairness of a hearing cannot be assessed mathematically or scientifically. Nor is it dependent on a comparison between the way in which the judge has treated the two sides. If one party has been treated in such a way as to disable him or her from advancing his or her case properly, the hearing is not rendered fair by the fact that the other party has been treated equally unfairly. For what it is worth, however, a comparison of the quantum of intervention by the judge on the second day of each counsel’s cross-examination of the other party shows, I think, that Mr Cameron was rather less hampered than Ms Toch.
It is necessary to look not only at the quantum of the judge’s interventions but also at their nature. As Mr Turner submitted on behalf of the father, a litigant does not have an unrestricted right to present a case in such a way as he or she or his or her lawyers may choose. A judge sometimes has no choice but to intervene during the evidence because of the nature of the questioning or in order to manage the use of court time (as the father would submit was necessary here). Furthermore, the interventions can sometimes be a help to counsel in his or her questioning rather than a hindrance.

In this case, the Judge had clearly crossed the line and her interventions were a hindrance:

Standing back again from the detail, it seems to me that the judge’s interventions on the second day of Ms Toch’s cross-examination of the father differed in character from the sort of intervention, sometimes quite frequent but nonetheless part of the normal course of a trial, in which the judge simply seeks clarification of a page number or an aspect of questioning or, having an eye on the clock, seeks to move matters along. My assessment is that on this second day the judge’s interventions were such that they largely prevented Ms Toch’s cross-examination from getting off the ground or at least significantly hampered its progress and also took up a disproportionate amount of the limited time available to Ms Toch. They may also have undermined Ms Toch with the witness, diluting her questioning not only by interrupting its flow but also by leading the father to anticipate that it may be declared by the judge to be without proper foundation or badly put. This was a case in which, as the judge herself observed, the credibility of the parties was particularly material. Cross-examination was therefore of central importance in enabling the judge to make reliable findings of fact on their respective allegations. The judge’s interventions were such that I am unable to be sure that the father’s evidence was tested as was required.


Judges ought to be wary of making jokes in case they cross the line between what is tolerable and what is impermissable. See the comments of Ward LJ in paragraph 30 of El-Faragy v El Faragy and others in 2007 where he concluded that a fair minded observer would conclude the Judge was biased:

When I said at the beginning of the judgment that I found this case embarrassing, no little part of my embarrassment comes from my belief that the injection of a little humour lightens the load of high emotion that so often attends litigation and I am the very last judge to criticise laughter in court. I fully appreciate the conventional view that jokes are a bad thing. Of course they are when they are bad jokes – and I am sure I have myself often erred and committed that heinous judicial sin. Singer J. certainly erred in this case. These, I regret to say, were not just bad jokes: they were thoroughly bad jokes. Moreover, and importantly, they will inevitably be perceived to be racially offensive jokes. For my part I am totally convinced that they were not meant to be racist and I unreservedly acquit the judge of any suggestion that they were so intended. Unfortunately, every one of the four remarks can be seen to be not simply “colourful language” as the judge sought to excuse them but, to adopt Mr Randall’s submission, to be mocking and disparaging of the third respondent for his status as a Sheikh and/or his Saudi nationality and/or his ethnic origins and/or his Muslim faith.

What does ‘fair minded and informed’ mean?

This is an objective test, meaning that the personal views of the person making the accusation of bias is not enough to decide the issue. This is clearly sensible as the person complaining of bias may not be the most reliable person to make that claim. Just because a Judge disagrees with you, doesn’t make that Judge biased against you.

But if the Judge’s behaviour would seem unfair to an outside observer who doesn’t have your personal investment in the outcome, then it is likely that we can conclude that Judge did indeed act unfairly.

In Gillies v Secretary of State for Work and Pensions [2006] 1 WLR 781, at 787 it was held by the House of Lords that:

the fair-minded and informed observer can be assumed to have access to all the facts that are capable of being known by members of the public generally, bearing in mind that it is the appearance that these facts give rise to that matters, not what is in the mind of the particular judge or tribunal member who is under scrutiny.

However, this test has been criticised

This is fine, as far as background or simple facts are concerned, such as the evidence given, the treatment of the parties by the tribunal and the terms of any decision made. It is problematic, however, when the intricacies of a particular field of decision making are attributed to the onlooker. These complex facts are unlikely to be known by anybody other than those who already practice in the particular field. The danger is that vested with this knowledge our notional observer will overlook matters that would otherwise appear to general members of the public as being suspicious. This is where confidence in the system is lost.

The court emphasised in Lesage v Mauritius Commercial Bank Ltd [2012] UKPC 41, that it was important to look at the proceedings as a whole to see if an impression of bias was created.

But a Judge has a duty to case manage – when does this slip into unfairness?

Christopher Sharp QC considered the issue of bias in care proceedings and in particular the case of in the case of Re Q (Children) [2014] EWCA Civ 918, where he represented the LA. This was a very unusual case in that every party, apart from the guardian appealed about the way the Judge had handled it, leaving the Court of Appeal with seven notices of appeal to consider.

For favourable comment on the decision in Re Q and the questions to ask when looking at fairness of the proceedings see M, Re [2018] EWCOP 4 (08 February 2018)

As suesspiciousminds comments:

appeals on the point are pretty rare and successful appeals rarer still. Q is one of the latter, and as such a rare breed is worthy of some consideration.

The Judge made various comments about the state of the evidence at a Case Management Hearing (CMH) i.e. before all the final evidence had been heard. This lead to serious concerns from the lawyer present that the Judge was simply not prepared to consider any issues that he had not generated himself.

The Court of Appeal commented at paragraph 50 of their judgment:

Such expressions of judicial opinion, given the need for the judge to manage the case and be directive, are commonplace and would not be supportive of an appeal to this court based upon apparent judicial bias. The question in the present appeal is whether the other observations made by the judge, and the stage in the overall court process that those observations were made, establishes circumstances that would lead a fair-minded and informed observer to conclude that there was a real possibility that the judge was biased in the sense that he had formed a concluded view on the mother’s allegations and her overall veracity.that it is often difficult for a judge in care proceedings to both actively manage the case and yet not make decisions before all the evidence is before the court:

It is clear that a judge hearing a family case has a duty to deal with cases efficiently.  Judges are expected to  ‘actively manage’ cases  [FPR 2010, rr 1.1(1) and 1.4(1)]. This will include consideration of a range of issues as set out at FPR 2010, r 1.4(2), including early identification of the relevant issues  [r 1.4(2)(b)(i)] and deciding promptly which issues need full investigation and hearing [r 1.4(2)(c)(i)].

As Christopher Sharp QC comments:

There is a very real danger that in this process judges are going to be seeing issues without the benefit of all the evidence (which may not yet have been gathered), or without the benefit of a full understanding of both sides of an argument. The judge therefore has a fine line to walk between “robust case management” and appearing to jump to conclusions which may infect the whole process with the appearance of bias

The Court of Appeal did not want to criticise any Judge who was doing what he was supposed to do and deploying ‘robust case management’. However, there is a line between carrying out that duty and making premature decisions about a case – and the Judge crossed that line in Re Q. The Court of Appeal commented that he:

strayed beyond the case management role by engaging in an analysis, which by definition could only have been one-sided, of the veracity of the evidence and of the mother’s general credibility. The situation was compounded by the judge giving voice to the result of his analysis in unambiguous and conclusive terms in a manner that can only have established in the mind of a fair-minded and informed observer that there was a real possibility that the judge had formed a concluded and adverse view of the mother and her allegations at a preliminary stage in the trial process.

McFarlane LJ however also observed that:

 The role of a family judge in this respect is not at all easy and I would afford the benefit of the doubt to a judge even if the circumstances were very close to or even on the metaphorical line.

Therefore it is not going to be easy to establish judicial bias in a family case and you will need to be clear about why and how a Judge crossed over the line from robust case management into being biased against you.  But if you can establish bias, the consequences are clear.

 

A Judge can be found to act unwisely – but not necessarily be biased

A useful case is Bubbles & Wine Ltd v Lusha [2018] EWCA Civ 468 (14 March 2018) where the trial judge had a private conversation with the barrister for one party – primarily about the Judge’s daughter who had undertaken a mini pupillage at that barrister’s chambers. However, the Judge also made some brief comment about what he thought about the state of the evidence and asked the barrister to pass on his comments to the other side. This caused alarm for the other side who wanted the Judge to recuse himself.

The Court of Appeal had some strong words for the Judge’s behaviour in having such a conversation in private and the justifications he attempted to give for why he made that decision. However, their conclusion was clear at para 42:

Applying the established legal test of apparent bias, I am satisfied that the fair-minded and informed observer, having considered all the relevant facts, would conclude that the conduct of the judge in this case, wrong-headed as it was, did not indicate any real possibility that he was biased. I would accordingly dismiss the appeal.

What happens if the Judge is found to be biased?

If the case is on-going, the Judge will have to step down and the case will be re-heard before a different Judge. This is called ‘recusal’.

If the case is finished, then an allegation of judicial bias will be a ground of appeal against his or her decisions. The importance of judicial integrity is such, that if you can establish bias, the fact that a further hearing will be inconvenient and cost money is irrelevant – the Judge must step down.

Lord Kerr in the case of Lesage commented:

59. In a case where it has been concluded that there is the appearance of bias and unfairness, however, these are consequences which simply have to be accepted. They cannot outweigh the unanswerable need to ensure that a trial which is free from even the appearance of unfairness is the indispensable right of all parties and is fundamental to the proper administration of justice. In AWG Group Ltd v Morrison [2006] 1 WLR 1163, para 6 Mummery LJ dealt with this issue thus:

“Inconvenience, costs and delay do not, however, count in a case where the principle of judicial impartiality is properly invoked. This is because it is the fundamental principle of justice, both at common law and under article 6 of the Convention for the Protection of Human Rights. If, on an assessment of all the relevant circumstances, the conclusion is that the principle either has been, or will be, breached, the judge is automatically disqualified from hearing the case. It is not a discretionary case management decision reached by weighing various relevant factors in the balance.”

60. The Board endorses this approach. Where the appearance of unfairness or bias has been established, ordering a new trial free from the taint of that manifestation is unavoidable.

What’s the procedure for recusal?

With thanks to Sam for finding the case 

This was discussed in the case of El Faragy and Others in 2007. Lord Justice Ward suggested the following procedure at paragraph 32:

First, if circumstances permit, an informal approach should be made to the judge (for example by letter) making the complaint and inviting recusal. While judges should not yield to frivolous objections, a judge can nevertheless “with honour totally deny the complaint but still pass the case to a colleague”. If the judge does not feel able to do so, then it may be preferable, if it is possible to arrange it, to have another judge take the decision, “hard though it is to sit in judgment of one’s colleague, for where the appearance of justice is at stake, it is better that justice be done independently by another rather than require the judge to sit in judgment of his own behaviour”.

The judgement gives no further clue as to what is meant by ‘if circumstances permit’ and it is difficult to see how family cases would allow the luxury of time to write such a letter and await a reply. It is respectfully suggested that it would probably be better if you raise the matter as soon as you can in court.

UPDATE – information from one of our readers July 2015

It looks as if writing a letter is the way to go – thanks to one of our readers who is attempting to convince a judge to recuse himself. They have been told that the Court of Appeal will pass the application onto a Master without a court order. The application must include a covering letter, the letter to the judge and his reply.   We would be interested to hear from anyone else who has tried this. 

 

Mr Justice Peter Smith

For an example of a Judge – Mr Justice Peter Smith – who grudgingly agreed to step down after airing his personal views about his lost luggage in a dispute involving an airline,  see this post from Legal Cheek and a masterly take down from suesspiciousminds. The same judge was asked to recuse himself in 2007. 

EDIT 17th June 2016; for further comment from the Court of Appeal with regard to the behaviour of this judge regarding a letter he wrote criticising the conduct of a member of one particular Chambers, see the case of Harb v HRM Prince Abdul Aziz Bin Fahd [2016] EWCA Civ 556 and note the comments at para 68:

In his letter to the claimant’s solicitors dated 12th February 2016, the judge accepted that he should not have written the Letter. It is difficult to believe that any judge, still less a High Court Judge, could have done so. It was a shocking and, we regret to say, disgraceful letter to write. It shows a deeply worrying and fundamental lack of understanding of the proper role of a judge. What makes it worse is that it comes on the heels of the BAA baggage affair. In our view, the comments of Lord Pannick, far from being “outrageous” as the judge said in the Letter, were justified. We greatly regret having to criticise a judge in these strong terms, but our duty requires us to do so. But it does not follow from the fact that he acted in this deplorable way that the allegation of apparent bias must succeed. It is to that question that we now turn.

The court concluded at para 74 of its judgment:

We are prepared to assume that the informed and fair-minded observer, knowing of the Article, would conclude that there was a real possibility that the judge was biased against all members of Blackstone Chambers, at least for a short period after the publication of the Article. But for the reasons we have given, the observer would not conclude without more that there was a real possibility that this bias would affect the judge’s determination of the issues in a case in which a party was represented by a member of Blackstone Chambers.

Further Reading

 

Solution Finding Conference – 9th July Bristol CJC

Breaking the cycle of recurrent pregnancies and care proceedings.

The Problem – we are failing the women who repeatedly have children taken into care.

A multi-disciplinary meeting was held at Bristol Civil Justice Centre on 9th July inviting discussion of just two agenda items:

  • Address the necessity for the provision of early therapeutic intervention in cases of LA involvement with vulnerable mothers
  • Establish a PAUSE project in Bristol Area.

PAUSE is an innovative, dynamic and creative approach designed to address the needs of women who have had multiple children removed from their care. It offers an intense programme of therapeutic, practical and behavioural support through an integrated model to help break this destructive cycle.

See also the research from Dr Karen Broadhurst of Manchester University, funded by the Nuffield Foundation, which looks at the scale of the problem of mothers involved in recurrent care proceedings. 

HHJ Wildblood QC opened the meeting. He was clear that we were not here to either boast about successful projects currently in operation, nor to indulge in handwringing or other doom laden narratives. We were here to discuss the two agenda items and to seek solutions.

The meeting had been galvanised by the case over which he presided and in which Judi Evans had represented the mother. This was reported by Louise Tickle in the Guardian – Are we failing parents whose children are taken into care?

Agenda item 1: Why is early intervention so important?

The tragic circumstances of this case highlighted the need for focused and early intervention. This mother had a very difficult childhood and suffered considerable abuse and trauma. She was not assessed until some 11 months after the referral was first made; the assessment began when she was 8 months pregnant. The Judge considered this timetable ‘an absolute disgrace’. If this mother could have benefited from therapeutic intervention it needed to be obtained at an early stage.

It was much cheaper to provide therapy over 20 weeks than to run care proceedings. If it is to be said that people can’t change, then what is the point of a court process or psychological evidence at all?

 

Agenda item 2: We want to set up a PAUSE style project in Bristol

HHJ Wildblood QC stressed this was not a question of setting up a competing version of their project. The PAUSE project has been tested and validated and is supported by the Department of Education. We are looking to put into effect a Pause model here. Its happening in other areas and we need to keep up. We are driving this forward and anticipate that we will be supported with funding – something can be done.

Judi Evans then introduced the proposed ‘Feasibility Study’. Woman who suffer recurrent removal of their children have usually suffered trauma in their childhoods. Absent therapeutic intervention, change is very rare. Some can be helped. Loss of their child can be a powerful catalyst to enable parents to engage in therapeutic intervention. Some however have complex difficulties and won’t realistically benefit.

We need to identify best practice intervention and identify cohort of parents who could benefit. Primary outcomes of the study will be measure in terms of engagement with intervention, measure of response and assessment of parenting. Then independent follow up at 6 and 12 months. Measure secondary outcomes such as improvement in pre-birth planning by LA and reduction of psychological assessments in PLO process and issue of proceedings.

Pragmatic Matched Case Control – 20 women will receive therapy, 20 will not. Practical considerations need to be addressed. Counsellors appointed and room available, travel costs for parents and funding of research assistant.

Inclusion criteria – parents will have undergone psychiatric assessment which will identify past childhood experiences, how they were parented, history of trauma and maladaptive coping strategies developed as a result. There will follow recommendations for psychological intervention and timescales for improvement.

Matching criteria to match intervention and control groups. Exclusion – those with long term serious mental health illness; personality disorders; persistant substance misuse; evident absence of insight or other poor indicators.

Dr Freda Gardner explained that personality disorders were a complex diagnosis and indicated severe problems which are often ill defined. It is hoped that at some stage those with PD can also be helped but they will have to be excluded from the initial feasibility study or there was a risk their inclusion would simply skew the statistics.

What is proposed for intervention?  First, an initial assessment of level of insight. What changes and development are possible, What capacity does the parent have to engage. Then followed by a brief intervention treatment plan for 20 sessions in PLO process or earlier over 4-5 months. Data collected after birth and at 6 months which will be analysed using appropriate narrative and statistical analysis.

 

The One25 Charity in Bristol

GP Annie Egginton spoke on behalf of the one25 charity who had been galvanised by Louise Tickle’s article. The group had been inspired by reading about PAUSE and visited them in Hackney.  Statistics gathered in Bristol, although limited, support the positive outcomes of the Hackney PAUSE project and indicate substantial savings can be made by avoiding care proceedings.

Hackney PAUSE pilot outcomes were good. They helped 20 women over one year – none conceived. The majority stabilised from previous chaotic lifestyles. £20 million was the estimated potential cost of 246 children being taken into care, savings of £10m were possible.

one25 could host a pilot project in Bristol if funding was in place. Estimated costs of project,  £169,520 to support 20 women a for 2 years as compared with cost of court proceedings at approximtely £1,776,000. Pilot has been proven to give results and is clearly cheaper than court, but it was recognised that commissioning services was difficult as funding came from a variety of different agencies.

The biggest problem for example is housing – the majority of people did not have stable accommodation. PAUSE in Hackney got together with local Housing Departments to deal with arrears. This is one of things we really need to address.

 

Statutory and voluntary agencies need to work together – and we need funding

Jo Morrell from Kids Company agreed this was an exciting invitation for statutory and voluntary agencies working together. The challenge – how do we offer therapy that is meaningful and accessible to vulnerable people.

HHJ Wildblood QC confirmed that we must build bridges between statutory and voluntary agencies. But we need to be organised and we need to be funded. Who will fund us – he is approaching various local charities. All suggestions were welcome – without funding,  we are back to square one. Costs are not just an issue for LAs but cover a wide range of agencies.

Those attending the meeting were invited to express an interest in becoming part of further discussions, primarily to identify and approach suitable sources of funding. There is an urgent need to make both these projects a reality.






Going Off the Rails in Interesting Times

Why do so many care cases go wrong?

What are the recent cases demanding?

  • Proper evidence
  • Proper thought about the evidence
  • Collective responsibility

For consideration of the importance of good evidence and how we secure it see the post  Achieving Best Evidence In Children Act cases

 

And why is it going to cause significant problems?

HHJ Wildblood’s recent newsletter – June 2015: Pressure on the court

There will be no capacity to ‘oversit’ this year – last year 160 days were ‘oversat’ at judge level. Thus ‘we must use every day of court time to its fullest advantage’.
If we run out of sitting days the solution will be simple: we cannot list court cases and that has dramatic consequences for litigants and lawyers alike (there will not be work for them to do). We must therefore tighten up considerably and stop the drift that is occurring.

Identified problems

  • Cases drifting – 49 cases now off 26 week track
  • Too many psychologists and ISW being appointed
  • Cases are not being made ready for court by LA in pre-proceedings stage
  • Too many examples of excessive and unstructured use of section 20 accommodation
  • Failure to obtain police disclosure in accordance with the protocol
  • IRHS being listed very close to FH and not being used properly. They should be listed at week 20 and used to resolve issues
  • Solicitors are not filing noticing of acting, causing problems in court office
  • Issues re kinship care should be subject of express and full discussion at the CMH and there should be case specific directions about it

 

Examples from case law and what we can learn

H (A Child) (Analysis of Realistic Options and SGOs) [2015] EWCA Civ 406 – 22 January 2015

Facts: LA issued care proceedings concerning a 4 year old in March 2014. In October 2014 an SGO was made with regard to a member of the mother’s church who was not a relative, even though the child had been cared for by the father since March. The father was successful in challenging this. There had been failure to comply with rules and practice directions, particularly with regard to the procedural requirements for an SGO.
At paragraph 7 the Court of Appeal commented ominously:
‘In simple terms the case was not in a fit state to be heard. It is a matter of some significance that no-one realised that fact at the time’
There were two realistic placement options – supported care by the father or care by a relative stranger under and SGO. The fatal flaws in this case stemmed from as assumption created by poor case management that the SGO was a realistic option but the father was not.
Classic errors included:

  • Lack of judicial/counsel continuity
  • Failure to identify issues and realistic options
  • Failure to consider what witnesses were available for eg an expert report was carried out re father in 2011/12 – the father said his circumstances had now changed but no one gave any thought to seeking an addendum report or calling the expert to give live evidence.

The consequence was that the Judge did not undertake the necessary comparative welfare analysis and thus also failed to carry out a proper evaluation of whether the interference with Article 8 rights proposed by the making of an SGO could be justified.

 

A (A child) [2015] EWFC 11 17 February 2015

A textbook example of how not to embark upon or pursue a care case. Facts: A was born on 11th January while his mother was serving a prison sentence. An initial viability assessment of his father was negative so A went into foster care. The LA then took 8 months to issue care proceedings and were found to be too quick to believe the worst of the father and made comments on the ‘immorality’ of his conduct. It was difficult for the President to discern what had happened with the assessment process and difficult to link what was set out in the threshold with the need to prove significant harm.

The Guardian came in for particular criticism at paragraph 39 onwards due to the disconnect between her oral and her written evidence:

On 6 October 2014 CG completed her initial case analysis. It is striking for what it did not say. In her oral evidence to me, CG described herself as being “extremely concerned” by the assessments. She was, she said, and this was her own, unprompted, word, “appalled”, not merely because of the local authority’s delay in issuing the proceedings but also because of the poor quality of the assessments, both the assessment of the father and the assessment of the paternal grandmother and step- grandfather. Nothing of this is to be found, however, in her initial case analysis. …
The letter from Mr Leigh had, as we have seen, referred to the guardian being “most concerned at the social work exhibited in this case” but it focused on the issue of delay. In her oral evidence to me, CG said that she had brought her concerns about the quality of the assessments to the attention of the local authority’s representatives when the matter was back at court on 6 October 2014. No doubt she did, but what is far from clear is the extent to which, if at all, her concerns were articulated, either to the other parties or to Judge Taylor. I am driven to the unhappy conclusion that whatever may have been said was wholly inadequate to bring home, either to this very experienced family judge or to the parties, the guardian’s real views about the inadequacy of the assessments.

The President identified 3 fundamental principles. Failing to abide by these principles will have serious implications for the successful pursuit of an application in court.

  • Facts must be drawn from evidence, not suspicion or speculation
    • LA must provide proper evidence, direct whenever possible
    • LA must not confuse the distinction between asserting a fact and the evidence needed to prove it
  • Facts must be linked to the case on threshold; WHY do these facts go to prove significant harm or risk of it?
  • Society must be willing to tolerate diverse standards of parenting… it is not the provenance of the state to spare children all the consequences of defective parenting… (Hedley J re L [2007] 1 FLR 2050 para 50)

An interesting aside: Sir Mark Hedley addressed our recent conference ‘Is the Child Protection System Fit for Purpose’ and opined that whenever judges saw counsel citing this famous dictum ‘it was because they knew they were going to lose’ – I am not so sure he is right about this with the President’s continued endorsement.

Re J [2015] EWCA Civ 222 19th February 2015.

Facts: two young parents who behaved in an irresponsible manner. There were issues of drug use and domestic violence. The mother had been sexually abused as a child in care. The Court of Appeal were clear this was NOT a finely balanced appeal as it was simply ‘impossible’ to detect in the judgment the Judge’s process of analysis.
Aikens JL identified the fundamental principles at para 56 – the Court of Appeal agreed with the President’s judgment in Re A, but stressed that none of these principles are new.

  • In an adoption case, it is for the local authority to prove, on a balance of probabilities, the facts on which it relies and if adoption is to be ordered, to demonstrate that “nothing else will do”, when having regard to the overriding requirements of the child’s welfare.
  • If the local authority’s case on a factual issue is challenged, the local authority must adduce proper evidence to establish the fact it seeks to prove. If a local authority asserts that a parent “does not admit, recognise or acknowledge” that a matter of concern to the authority is the case, then if that matter of concern is put in issue, it is for the local authority to prove it is the case and, furthermore, that the matter of concern “has the significance attributed to it by the local authority”.
  • Hearsay evidence about issues that appear in reports produced on behalf of the local authority, although admissible, has strict limitations if a parent challenges that hearsay evidence by giving contrary oral evidence at a hearing. If the local authority is unwilling or unable to produce a witness who can speak to the relevant matter by first hand evidence, it may find itself in “great, or indeed insuperable” difficulties in proving the fact or matter alleged by the local authority but which is challenged.
  • The formulation of “Threshold” issues and proposed findings of fact must be done with the utmost care and precision. The distinction between a fact and evidence alleged to prove a fact is fundamental and must be recognised. The document must identify the relevant facts which are sought to be proved. It can be cross-referenced to evidence relied on to prove the facts asserted but should not contain mere allegations (“he appears to have lied” etc.)
    It is for the local authority to prove that there is the necessary link between the facts upon which it relies and its case on Threshold. The local authority must demonstrate why certain facts, if proved, “justify the conclusion that the child has suffered or is at the risk of suffering significant harm” of the type asserted by the local authority.”The local authority’s evidence and submissions must set out the arguments and explain explicitly why it is said that, in the particular case, the conclusion [that the child has suffered or is at the risk of suffering significant harm] indeed follows from the facts [proved]”.
  • It is vital that local authorities, and, even more importantly, judges, bear in mind that nearly all parents will be imperfect in some way or other. The State will not take away the children of “those who commit crimes, abuse alcohol or drugs or suffer from physical or mental illness or disability, or who espouse antisocial, political or religious beliefs”simply because those facts are established. It must be demonstrated by the local authority, in the first place, that by reason of one or more of those facts, the child has suffered or is at risk of suffering significant harm. Even if that is demonstrated, adoption will not be ordered unless it is demonstrated by the local authority that “nothing else will do” when having regard to the overriding requirements of the child’s welfare. The court must guard against “social engineering”.
  • When a judge considers the evidence, he must take all of it into account and consider each piece of evidence in the context of all the other evidence, and, to use a metaphor, examine the canvas overall.
  • In considering a local authority’s application for a care order for adoption the judge must have regard to the “welfare checklist” in section1(3) of the Children Act 1989 and that in section 1(4) of the Adoption and Children Act 2002. The judge must also treat, as a paramount consideration, the child’s welfare “throughout his life” in accordance with section 1(2) of the 2002 Act. In dispensing with the parents’ consent, the judge must apply section 52(1)(b) as explained in Re P (Placement Orders, parental consent) [2008] EWCA Civ 535, [2008] 2 FLR 625.

 

South Glos Council v L and R 30th June 2015

Facts – two children both under 3 years old had been in section 20 accommodation since September 2014. In January 2015 the LA applied for a care order given the concerns about the parents who were both very young. Issues around neglect and chaotic lifestyles. On 30th January the Magistrates listed for a final hearing in July, so within 26 week period. HHJ Wildblood commented at para 4 of the judgment.

Plainly this was a case that should have been resolved within the 26 week period prescribed by statute. It is not a complex case. The issues were clearly defined. The Local Authority had been involved with the parents for years before the case started and so knew them well; the father and mother were involved with children’s services as children; there was a heightened involvement between the Local Authority and the mother following the birth of the first child. Thus, the authority had plenty of time to make up its mind about what orders it would seek once proceedings were issued.

But by the IRH at the end of June the case was clearly off the rails; the LA had no final evidence so the parents did not know the case against them and the guardian couldn’t prepare her analysis. So what went wrong?

A psychological assessment was ordered on 12th March which was not necessary. HHJ Wildblood is not sitting on the fence with his comments in para 7:

In this area far too many psychological reports are being ordered when they do not meet the test laid down in section 13(6) of The Children and Families Act 2014 that such reports should only be ordered when they are ‘necessary to assist the court to resolve the proceedings justly’. Unnecessary reports waste public money, cause delay and add nothing to the overall quality of the evidence in a case. The report, which I have read, contains little of value that could not have been found elsewhere within the evidence, if the evidence had been properly prepared;

What this case needed was proper parenting assessment of both parents. But these assessments were not done in advance of the IRH at the end of June – because the agency SW responsible had left the LA and not done this work. So by the time of the IRH the LA did not have their final evidence so neither parents nor Guardian could respond. HHJ Wildblood called for an explanation at the highest level of Director and he found the full and frank response helpful. The Director wrote (See para 13):

This situation has largely come about because of significant staffing issues within South Gloucestershire Council’s social care service. The North locality team has been affected particularly badly by high levels of staff turnover at both practitioner and management levels, which in turn has led to the use of relatively high levels of agency staff. It is evident that this situation has impacted on this case with a lack of consistency and direction, as well as a loss of knowledge and oversight each time a social worker or manager has left the Department. The Local authority’s legal team has equally been through a period of significant turnover and change recently, which has again led to inconsistency in relation to legal oversight and direction’.

HHJ Wildblood was sympathetic but obviously such sympathy is not infinite. He set out a list of considerations for future cases which may be going off the rails.

  • If a case is going off track it is imperative that the issue is brought to the attention of the court as soon as this occurs. It may then be possible to retrieve the position. Once the problem has occurred, as it has here, it is too late.
  • Cases do not involve just one professional. They involve a large array of people and it must be a collective responsibility on all to bring a case to the attention of the court once it is going off track in this way.
  • Where one party to a multi party case fails it brings down the others and also affects the efficient running of the court.
  • If a social worker is not performing as she should there are management and legal teams within a Local Authority that should pick up on what is happening.

 

Collective Responsibility?

It will be interesting to see how this concept develops – particularly when many of the problems in these cases (particularly pressure on LA staffing levels) are outside the sphere of influence of any of the participants to the care proceedings.






Article 3 ECHR and Care Proceedings

This is a post by Sarah Phillimore

No one shall be subjected to torture or inhuman or degrading treatment or punishment.

A number of commenters on the CPR site were recently discussing how Article 3 could or should apply to care proceedings. Family practitioners generally focus on Articles 6 and 8  of the ECHR – right to a fair trial and right to respect to family and private life. To a lesser extent Article 5 (right to liberty) may come into play when discussing for e.g. secure accommodation. 

One reader commented:

Are Social Workers sub-human? Does the System treat Children worse than Animals?
It says above that the most relevant articles of the Human Rights Act relating to child-protection are 6 and 8. Parents may believe the main causes for complaint would be under Article 3. I certainly do!
Local Authority actions are inhumane and in contravention of Article 3 of the ECHR convention relating to torture and inhuman or degrading treatment of both children and families as a whole. The Local Authority is effectively causing inestimable, permanent, emotional and physical harm the full effects of which it is impossible to predict to the children and adults by mental torture, anguish and degradation.


– See more at: https://childprotectionresource.online/human-rights-act-1998/#comments

Are we lawyers missing a rather important trick in not looking more closely at what Article 3 demands and whether or not it applies to care proceedings?

Article 3 of the ECHR reads very simply

No one shall be subjected to torture or inhuman or degrading treatment or punishment.

There is no exception or qualification to this right. It is absolute.

 

But what does ‘torture’ or ‘inhuman or degrading treatment’ mean?

Article 3 is directed primarily to protect the physical integrity of a person but it has been found to apply to acts that cause severe mental suffering. Article 3 is ‘absolute’ so it applies regardless of either the conduct or circumstances of the victim or the threat he poses to the security of the State – so for e.g. Article 3 forbids torturing terrorists.

Article 1 of the 1984 UN Convention against Torture provides this definition of torture:

For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

I hope very much that it is vanishingly unlikely that ‘torture’ as so defined will ever play a role in care proceedings. So we need to focus on ‘inhuman or degrading treatment’. This ill treatment must meet a certain level of seriousness before Article 3 is engaged. See further the Manual for Lawyers produced by Interights, (an international legal human rights NGO which was established in 1982 but sadly closed down in 2014 due to lack of funding).

Ireland v United Kingdom (1978) found that ill-treatment must attain a minimum level of severity. The assessment of this minimum will depend on the circumstances of the particular case, such as how long the ill treatment lasted, what physical/mental effects did it have, the sex, age, and state of health of the victim of the ill treatment.

 

So what kinds of ill treatment meet the minimum standard?

Given all the relevant factors that need to be considered, it is not going to be easy to set out clear criteria to say if X or Y happens, then the necessary minimum standards will be met to show Article 3 is engaged.

Some cases will be very clear. For example, in Aydin v Turkey (1997), the applicant was a seventeen year old girl who was raped repeatedly by State officials. This was found to be a particularly abhorrent form of ill treatment.

Others will be less clear cut. For example, in Costello-Roberts v the UK  (1993),  minimum standards of ill treatment were not met by hitting a 7 year old three times on the buttocks with a gym shoe. But In Toteva v Bulgaria (2004), the applicant was 67 years old when she was detained and injured by police. Given her age, the court thought the injuries were serious enough to meet the required threshold for ‘ill treatment’ under Article 3.

As Interrights comment:

The Court is clear that the individual circumstances of the case, and especially factors pertaining to the victim, and sometimes his or her near relatives, must be taken into account. The question as to how much weight to attribute to such factors appears to depend on the nature of the allegations and other surrounding circumstances. Thus, a domestic court is bound to take all relevant factors into account, and engage in a delicate balancing act, in considering whether a person has been subjected to torture or one of the other prohibited forms of ill-treatment.

Children suffering inhuman and degrading treatment

There is no doubt that children have been able to successfully rely on Article 3 when complaining about LA action or inaction.

See  Z and Others v the UK (2001). This case involved children who sued a LA for not removing them from their parents quickly enough, and this illustrates just how serious the ill treament must be to come within Article 3. At para 40 of their judgment the Court described the children’s circumstances thus:

All the applicants were seen by Dr Dora Black, a consultant child psychiatrist, in January 1993. Dr Black stated that the three older children were all showing signs of psychological disturbance. Z was exhibiting signs of serious depressive illness and had assumed responsibility for her family and for its breakdown. Her mother’s behaviour towards her was described as cruel and emotionally abusive. A and B, who suffered from nightmares, were both identified as showing signs of post-traumatic stress disorder and A was also chronically under-attached. Dr Black noted that all children had been deprived of affection and physical care. She described their experiences as “to put it bluntly, horrific”, and added that the case was the worst case of neglect and emotional abuse that she had seen in her professional career. In her opinion, social services had “leaned over backwards to avoid putting these children on the Child Protection Register and had delayed too long, leaving at least three of the children with serious psychological disturbance as a result”.

The Court were able to conclude at para 73 of their judgment, without hesitation, that the children’s Article 3 rights had been breached:

73. The Court reiterates that Article 3 enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment. The obligation on High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill-treatment administered by private individuals (see A. v. the United Kingdom, judgment of 23 September 1998, Reports of Judgments and Decisions 1998‑VI, p. 2699, § 22). These measures should provide effective protection, in particular, of children and other vulnerable persons and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge (see, mutatis mutandis, Osman v. the United Kingdom, judgment of 28 October 1998, Reports 1998-VIII,
pp. 3159-60, § 116).
74. There is no dispute in the present case that the neglect and abuse suffered by the four applicant children reached the threshold of inhuman and degrading treatment (as recounted in paragraphs 11-36 above). This treatment was brought to the local authority’s attention, at the earliest in October 1987. It was under a statutory duty to protect the children and had a range of powers available to them, including the removal of the children from their home. These were, however, only taken into emergency care, at the insistence of the mother, on 30 April 1992. Over the intervening period of four and a half years, they had been subjected in their home to what the consultant child psychiatrist who examined them referred as horrific experiences (see paragraph 40 above). The Criminal Injuries Compensation Board had also found that the children had been subject to appalling neglect over an extended period and suffered physical and psychological injury directly attributable to a crime of violence (see paragraph 49 above). The Court acknowledges the difficult and sensitive decisions facing social services and the important countervailing principle of respecting and preserving family life. The present case, however, leaves no doubt as to the failure of the system to protect these applicant children from serious, long-term neglect and abuse.

EDIT – I am grateful to Suesspiciousminds for reminding me of the case of A & S (Children) v Lancashire County Council [2012] and for his confirmation that he isn’t aware of any case where Article 3 has been relied on with respect to parents.

In this case, the court found breaches of Articles 6, 8 and 3 by the LA and the IRO in the following 10 respects:

(1) Failed to provide A and S with a proper opportunity of securing a permanent adoptive placement and a settled and secure home life. (Art. 8)

(2) Failed to seek revocation of the orders freeing A and S for adoption, made on the 19 March 2001 pursuant to Section 18(1) Adoption Act 1976, which effectively deprived them of:

(a) The protection afforded to children under the Children Act 1989;

(b) Contact with their mother and/or other members of their family;

(c) Access to the Court and the procedural protection of a Guardian.
(Arts. 6 & 8)
(3) Permitted A and S to be subjected to degrading treatment and physical assault and failed adequately to protect their physical and sexual safety and their psychological health (Arts. 3 and 8).

(4) Failed to provide accurate information concerning A and S’s legal status to the Independent Reviewing Officers. (Art. 8)

(5) Failed to ensure that there were sufficient procedures in place to give effect to the recommendations of the Looked After Child Reviews. (Art 8.)

(6) Failed to promote the rights of A and S to independent legal advice. (Art. 6)

(7) Specifically, failed to act as the ‘responsible body’ to enable A and S to pursue any potential claims for criminal injuries compensation, tortious liability and/or breach of Human Rights arising from their treatment by their mother, or by the Hs or by Mrs B. (Art. 6)

The IRO:
(8) Failed to identify that A and S’s Human Rights had been and were being infringed. (Arts. 6 & 8)

(9) Failed to take effective action to ensure that LCC acted upon the recommendations of Looked After Child Reviews. (Art. 8)

(10) Failed to refer the circumstances of A and S to CAFCASS Legal. (Art. 8)

 

But what of parents in care proceedings?

I am not aware of Article 3 being relied upon by parents in any action against a LA for initiating or botching care proceedings, and would be very interested to hear if anyone knows differently.

The anguish and misery felt by many parents when their children are removed have been described eloquently and painfully on this blog and on others. If that anguish and misery is compounded for parents, not only by the loss of their child, but by indifference, rudeness or even worse from the professionals involved in that process, can we argue that Article 3 is engaged?

I suspect the difficulty here will be the surrounding circumstances which have lead to the parents feeling such anguish. LAs are under a legal obligation to protect children in their area. Their investigations and any subsequent removal of children sanctioned by the court are likely to be very distressing to parents but these are lawful acts carried out to achieve an aim of general public good; to protect children.

For example, in Kudla v Poland (2000) the applicant was detained in custody before his trial. He was found to be suffering from mental illness and transferred to a prison hospital. The Court examined the circumstances of his detention and held that to find a violation of  Article 3, the suffering and humiliation involved must go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment.

 

But what if an LA is acting outside the law?

An interesting consideration arises if the actions of an LA bring about separation of a parent and child and the LA had in fact no lawful basis to intervene. Worrying examples of this can be seen in how section 20 has been misused over the years. The State could therefore not rely on any argument that the parents’ distress was simply the unfortunate by product of legitimate state action.

The courts have certainly seemed more keen recently to recognise and condemn LA for acting in breach of parents’ Article 6 and 8 rights and award them damages under the Human Rights Act 1998.

Is it possible that the State could be found to breach Article 3 if a parent suffers serious mental anguish as a result of care proceedings that should never have been started or were conducted improperly? I can’t think of any logical reason why not, but I would assume that the level of distress suffered would have to be very high and the failures of the State agents particularly egregious.

Conclusions

I find it frustrating when parent campaigners speak in terms of social workers being ‘Nazis’ or ‘like Stalin’ as it is difficult to see where any sensible discussion can go once it is hijacked by such unhelpful hyperbole. There can be no useful comparison between a system of child protection in a functioning democratic state and a totalitarian regime that led to the deaths of millions. I don’t want to waste my time going down that particular rabbit hole.

BUT. The one thing I never really thought about or engaged with much before becoming involved with the Child Protection Resource was the pain and misery of the parents. And it is real. And it provokes some legitimate questions about how the State should be operating to protect the most vulnerable members of society – and this group must be wider than just the children, but must include their parents too.

So I am not convinced that Article 3 is applicable to the vast majority of care proceedings, but I think there is certainly an argument to be made that it might be. And that is not something I would have even considered a year ago.

So I must give thanks to the commentators on this site for opening my eyes – we may not always agree with one another but hopefully if we can continue a constructive dialogue, we can continue to help each other develop insight and understanding into such a profoundly important process.






Child Protection: the Law before the Children Act 1989

The Good Old Days?

This is a post by Kate Wells, a retired social worker, who examines the law about Child Protection which predates the Children Act 1989.

CHILDREN ACT 1948

DUTY OF LOCAL AUTHORITIES TO ASSUME CARE OF CHILDREN.

Duty of local authority to provide for orphans, deserted children, etc.

1.-(1) Where it appears to a local authority with respect to a child in their area appearing to them to be under the age of seventeen –

(a) that he has neither parent nor guardian or has been and remains abandoned by his parents or guardian or is lost; or

(b) that his parents or guardian are, for the time being or permanently prevented by reason of   mental or bodily disease or infirmity or other incapacity or any other circumstances from providing for his accommodation, maintenance and upbringing; and

(c) in either case, that the intervention of the local authority under this section is necessary in the interests of the welfare of the child,

it shall be the duty of the local authority to receive the child into their care under this section.

(2) Where a local authority have received a child into their care under this section, it shall, subject to the provisions of this Part of this Act, be their duty to keep the child in their care so long as the welfare of the child appears to them to require it and the child has not attained the age of eighteen.

(3) Nothing in this section shall authorise a local authority to keep a child in their care under this section if any parent or guardian desires to take over the care of the child, and the local authority shall, in all cases where it appears to them consistent with the welfare of the child so to do, endeavour to secure that the care of the child is taken over either –

(a) by a parent or guardian of his, or

(b) by a relative or friend of his, being, where possible, a person of the same religious persuasion as the child or who gives an undertaking that the child will be brought up in that religious persuasion.

(4) Where a local authority receive a child into their care under this section who is then ordinarily resident in the area of another local authority, –

(a) that other local authority may at any time not later than three months after the determination (whether by agreement between the authorities or in accordance with the following provisions of this subsection) of the ordinary residence of the child, or with the concurrence of the first-mentioned authority at any subsequent time, take over the care of the child; and

(b) the first-mentioned authority may recover from the other authority any expenses duly incurred by them under Part II of this Act in respect of him (including any expenses so incurred after he has ceased to be a child and, if the other authority take over the care of him, including also any travelling or other expenses incurred in connection with the taking over).

Any question arising under this subsection as to the ordinary residence of a child shall be determined by the Secretary of State.

(5) In determining for the purposes of the last foregoing subsection the ordinary residence of any child, any period during which he resided in any place as an inmate of a school or other institution, or in accordance with the requirements of a supervision order or probation order or the conditions of a recognisance, or while boarded out under this Act,

I assume “received into care” equates to voluntary care, or as in present day legislative speak “looked after under S20 of CA1989”

 

ASSUMPTION BY LOCAL AUTHORITY OF PARENTAL RIGHTS

2.-(1) Subject to the provisions of this Part of this Act, a local authority may resolve with respect to any child in their care under the foregoing section in whose case it appears to them –

(a) that his parents are dead and that he has no guardian; or

(b) that a parent or guardian of his (hereinafter referred to as the person on whose account the resolution was passed) has abandoned him or suffers from some permanent disability rendering the said person incapable of caring for the child, or is of such habits or mode of life as to be unfit to have the care of the child –that all the rights and powers which the deceased parents would have if they were still living, or, as the case may be, all the rights and powers of the person on whose account the resolution was passed, shall vest in the local authority.

I wonder how they defined “permanent disability” and more pertinently “such habits and mode of life………” I recall reading in files that children were subject to a S.2 Resolution and this was dealt with and “resolved” by the Social Services Committee or their equivalent and am told by my friend, who was my manager for many years and started work in the newly formed Children’s Dept in 1948 and rose to become Director of SS in the shire county in which we worked (now aged 80 years)  that it was in fact largely a “rubber stamping job” – he recalls in his experience the committee never questioned anything and of course the social worker wasn’t present; the Resolution was made on the strength of a written report.  

He is unable to recall exactly what constituted “such habits or mode of life” – but clearly given the date it was tied in with the National Health Service Act in July 1948  and agreed with my suggestion that it would be related to homes that were less than hygienic – described as “dirty and foul smelling” children “unsuitably clothed” “inadequate nutrition” “drunkenness in either or both parents” “father without work”(suppose this had to be seen in the context of welfare rights – of which there were none! So a father without work would mean a family without food, heating etc. (Not so different from today!)

I assume “permanent disability” would refer to physical disabilities (and they would have been referred to as “cripples” and people with mental illness would have been referred to as “feeble minded” and even “idiots” (I’ve seen these terms used in numerous old files)and would have been incarcerated in an asylum, so would be unable to care for the children.  Again we are going back 75 years and I don’t think drugs to treat mental illness were commonly used until the late 1950s.  I know that the first anti-depressants became available on prescription from 1958.

(2) In the case of a resolution passed by paragraph (b) of the last foregoing subsection, unless the person on whose account the resolution was passed has consented in writing to the passing of the resolution, the local authority, if the whereabouts of the said person are known to them, shall forthwith after the passing of the resolution serve on him notice in writing of the passing thereof; and if, not later than one month after such a notice is served on him, the person on whose account the resolution was passed serves a notice in writing on the local authority objecting to the resolution, the resolution shall, subject to the provisions of subsection (3) of this section, lapse on the expiration of fourteen days from the service of the notice of objection.

Interesting that the parents only had one month to object to the Resolution… my friend recalls that in his recollection, very few parents actually did raise any objection.  There was a more subservient attitude to authority in those times I think. Obviously the assumption of parental rights on S.2 of the Act follows on from a child being received into care under S.1 of the Act.  I don’t know if they could use S.2 Resolution to remove a child from parents without recourse to the Juvenile Court.

Every notice served by a local authority under this subsection shall inform the person on whom the notice is served of his right to object to the resolution and of the effect of any objection made by him.

(3) Where a notice has been served on a local authority under subsection (2) of this section, the authority may not later than fourteen days from the receipt by them of the notice complain to a juvenile court, or in Scotland the sheriff, having jurisdiction in the area of the authority, and in that event the resolution shall not lapse by reason of the service of the notice until the determination of the complaint, and the court or sheriff may, on the hearing of the complaint, order that the resolution shall not lapse by reason of the service of the notice:

Provided that the court or sheriff shall not so order unless satisfied that the child had been, and at the time when the resolution was passed remained, abandoned by the person who made the objection or that that person is unfit to have the care of the child by reason of unsoundness of mind or mental deficiency or by reason of his habits or mode of life.

Ah here we have “unsoundness of mind or mental deficiency” and again the “habits and mode of life” which I think would be open to wide interpretation.

(4) Any notice under this section may be served by post, so however that a notice served by a local authority under subsection (2) of this section shall not be duly served by post unless it is sent in a registered letter.

EFFECT OF AN ASSUMPTION OF PARENTAL RIGHTS BY RESOLUTION.

3.-(1) While a resolution passed by virtue of paragraph (a) of subsection (1) of section two of this Act is in force with respect to a child, all rights and powers which the deceased parents would have if they were still living shall, in respect of the child, be vested in the local authority in accordance with the resolution.

(2) While a resolution passed by virtue of paragraph (b) the said subsection (1) is in force with respect to a child, all rights and powers of the person on whose account the resolution was passed shall, in respect of the child, be vested in the local authority in accordance with the resolution, and subsection (3) of section one of this Act shall not in respect of the child apply in relation to the person on whose account the resolution was passed.

(3) A resolution under section two of this Act shall not prevent the local authority from allowing, either for a fixed period or until the local authority otherwise determine, the care of the child to be taken over by, and the child to be under the control of, a parent, guardian, relative or friend in any case where it appears to the authority to be for the benefit of the child. I do recall the phrase “home on trial” but this might be used much later.

(4) Where a resolution under section two of this Act is in force in respect of a child and the child has ceased to be in the care of the local authority by whom the resolution was passed, then (without prejudice to the provisions of section one of this Act if those provisions apply) the local authority by whom the resolution was passed shall have power to receive the child back into their care in any circumstances in which it appears to them that their intervention under this subsection is necessary in the interests of the welfare of the child.

(5) Where a local authority receive a child into their care under the last foregoing subsection, the provisions of this Act, except subsections (4) and (5) of section one thereof, shall apply as if the child had been received into their care under the said section one.

(6) A resolution under the said section two shall not relieve any person from any liability to maintain, or contribute to the maintenance of, the child.

(7) A resolution under the said section two shall not authorise a local authority to cause a child to be brought up in any religious creed other than that in which he would have been brought up but for the resolution.

(8) Any person who knowingly –

(a) assists or induces or persistently attempts to induce a child to whom this subsection applies to run away, or

(b) harbours or conceals a child to whom this subsection applies who has run away, or prevents him from returning to the place from which he has run away,

shall on summary conviction be liable to a fine not exceeding twenty pounds or to imprisonment for a term not exceeding two months, or to both such fine and such imprisonment.

This subsection applies to any child in the care of a local authority under section one of this Act in whose case a resolution is in force under section two thereof, being a child for whom accommodation (whether in a home or otherwise) is being provided by the local authority in pursuance of Part II of this Act, and references in this subsection to running away shall be construed as references to running away from a place where accommodation is or was being so provided.

 

CHILDREN AND YOUNG PERSONS ACT 1969

This was the Act that was in force when I began my social work career in 1980 and I recall that it was not difficult to obtain a Care Order.  Cases were heard in the Magistrate’s Court and evidence had to be provided of course, but there was usually just the social work report and the Paediatrician’s report and occasionally the LA Medical Advisor would need to submit a report.  The LA lawyer was consulted as to whether the case would “stand up in court” and I can’t recall any particular problems in this respect.  Witnesses were cross-examined by the lawyer for the birthparents, but it was usually a local lawyer who defended the juveniles in criminal cases in the Juvenile Court and he wasn’t much good at cross-examination! 

The other thing I recall was that if granny or Auntie Betty asked if they could care for the children, there was absolutely no duty to assess them, or even tell the court that they had requested to care for the children.  I don’t remember this happening a great deal but if it did happen, we just had a brief discussion with them, and I am certain that I always said “thank you but no thank you” and that was end of matter!

We did need to obtain a Place of Safety Order to remove a child of course and we would go to the home of the Magistrate who was on duty and after a very brief discussion (usually in their hallway!) they would issue the Order, which I  think lasted for 28 days.

 

CARE AND OTHER TREATMENT OF JUVENILES THROUGH COURT PROCEEDINGS

Care of children and young persons through juvenile courts

1.-(1) Any local authority, constable or authorised person Care who reasonably believes that there are grounds for making an proceedings order under this section in respect of a child or young person may, subject to section 2(3) and (8) of this Act, bring him before a juvenile court.

(2) If the court before which a child or young person is brought under this section is of opinion that any of the following conditions is satisfied with respect to him, that is to say-

(a) his proper development is being avoidably prevented or neglected or his health is being avoidably impaired or neglected or he is being ill-treated ; or In some ways I think this wording is better than “significant harm” as it is more descriptive.

(b) it is probable that the condition set out in the preceding paragraph will be satisfied in his case, having regard to the fact that the court or another court has found that that condition is or was satisfied in the case of another child or young person who is or was a member of the household to which he belongs ; or  and the concept of “likely harm” embedded in the Act.

(c) he is exposed to moral danger ; or I have absolutely no idea how moral danger was interpreted.  Sexual abuse did not really “rear its head” until the early/mid 1980’s as I recall, so maybe it was if mother was a prostitute (as she would have been called then) or had a series of boyfriends in the family home, and the children were witnessing sexual acts.  There were certainly no sexually explicit videos to be seen!

(d) he is beyond the control of his parent or guardian ; or Again this is open to interpretation isn’t it – I do remember something called an “Unruly Certificate” but can’t recall how it was used.

(e) he is of compulsory school age within the meaning of 1944 c. 31. the Education Act 1944 and is not receiving efficient full-time education suitable to his age, ability and aptitude ; or This was a big problem “non-school attendance” and the evidence was provided by the Education Welfare Officer who trundled around diligently trying to get kids to school.  Social workers were also involved in this endeavour – usually without success.  Care Orders were granted very readily and children usually placed in a residential Children’s Home (often miles away from their home) which necessitated a change of school and teenagers in this position refused to go to the new school, or went in and then hopped off, so the whole thing was totally meaningless.  I worked in a Children’s Home for a short time and the school was right next door and the kids used to go to school at 9 and by 9.30 most of them would be back and we could see them climbing out of the school windows!  This was in a particularly rough area and the kids were tough too, and difficult to control, but it was permissible in those days to hit kids and this used to happen on a regular basis.

(f) he is guilty of an offence, excluding homicide, and also that he is in need of care or control which he is unlikely to receive unless the court makes an order under this section in respect of him, then, subject to the following provisions of this section and sections 2 and 3 of this Act, the court may if it thinks fit make such an order. In practice this meant it was always young males who were committing offences of theft, receiving stolen goods, criminal damage and Take Without Consent etc.  If he was out of school too and parents unable to affect any change, then a Care Order would be made.  These boys (aged around 13 – 17) were placed in residential accommodation. I think they were known as Community Home with Education (on the premises)  The one we used, St Gilberts in Worcestershire is currently in the news as allegations of historic sexual abuse have been made against the Christian Brothers who ran the school long before my time.  I think the perpetrators are all now deceased.  In my day it had an all male staff, some of a “macho” type but I don’t think there was any sexual abuse.  The boys were allowed home at weekends and parents were invited to Sports days and the like.  The building still exists to this day though not in use for any purpose.

(3) The order which a court may make under this section in respect of a child or young person is-

(a) an order requiring his parent or guardian to enter into a recognisance to take proper care of him and exercise proper control over him ; or

(b) a supervision order ; or

(c) a care order (other than an interim order) ; or

(d) a hospital order within the meaning of Part V of the 1959 c. 72. Mental Health Act 1959 ; or

(e) a guardianship order within the meaning of that Act.

(4) In any proceedings under this section the court may make orders in pursuance of paragraphs (c) and (d) of the preceding subsection but subject to that shall not make more than one of the orders mentioned in the preceding subsection, without prejudice to any power to make a further order in subsequent proceedings of any description ; and if in proceedings under this section the court makes one of those orders and an order so mentioned is already in force in respect of the child or young person in question, the court may discharge the earlier order unless it is a hospital or guardianship order.






How you do anything is how you do everything – the view from Finland #Nordic2015

Heading to Helsinki to take the leap of co-working

This is a post by Sarah Phillimore.  You may also be interested in this post about child protection in Finland. 

From 9 – 13 June I went to Helsinki to be part of the conference #Nordic2015. The theme was Courage in Social Work. Wearing my CPR hat, I gave a presentation about ‘The Courage to Communicate’ and heard presentations from Finnish groups who worked with families to support them in the community.

I also took the opportunity to have a look round Helskinki. It was interesting to note that at the cafes you would often find jugs of water and glasses. The thirsty traveller can refresh himself without cost. In England – at least in my experience – water is rarely freely offered and when requested often brought grudgingly or not at all. It struck me that this little thing was actually emblematic of a much wider gulf between our two societies, and that these different attitudes must inevitably play out in our respective approaches to child protection.

In England, the message seems to be – take responsibility for your own thirst. Buy some water or carry it with you. Why should you expect anyone else to bail you out for your own laziness or lack of foresight? If you are thirsty, that is your fault and you must take the blame.

Whereas in Helsinki there seems to be more of a recognition that life is simply nicer for everyone if we come out of our individualistic bubbles and work collectively to take care of each other. Rather than waste energy arguing over who should have provided the water, just make it available without fuss.

If you think my example is too whimsical, have a look at how Norway deals with children who kill children and compare and contrast with the response to the children who killed James Bulger. Consider again the relentless hunt for ‘someone to blame’ after Peter Connolley was killed – that ‘someone’ being exclusively amongst the social workers. As the Guardian commented about the killing of Silje Redergard in 1994:

But perhaps the most significant difference was that, in Britain, the authorities decided to let the nation judge the child killers. Trying Thompson and Venables as adults and releasing names and mugshots unleashed a countrywide roar of anguish that can still be heard today – much to the disadvantage of any damaged child who behaves badly to another, and who needs help rather than “justice”.

We are out of step with Europe

There is little doubt in my mind that the UK is increasingly out of step with other European countries and our approach to protecting children and supporting families, and there is a real risk that we end up doing precious little of either.

 

The courage to communicate

I first spoke on behalf of the CPR site about the courage to communicate. To say that it takes courage to speak the truth is both distorting and inhibiting, it makes the truth something to be feared. However, when that distortion and inhibition has already taken hold, courage is needed because you are trying to speak hard truths, that your listener may not want to hear.

I spoke of Atul Gawande, the American surgeon who recognised that as a young doctor he did not have the courage needed to tell his terminally ill patients that they were going to die and instead risked giving them false hope by talking of possible treatments which in reality would not help at all. I suspect the same fear – of not wanting to upset someone or make them angry with you, or having to admit that we just don’t have the resources available to help – is behind the cloaking of much of our attempts to communicate in the child protection field in terms of jargon and euphemism, which parents just cannot understand.

Social work and the work of family lawyers, is about human beings talking to other human beings, being interested in and concerned for the welfare of those other humans.  If we cannot communicate, distrust arises, which leads to fear and anger. All hope of a constructive relationship is lost. I spoke about the work of the CPR site and what we were trying to do to improve communication – by speaking hard truths plainly but hopefully with compassion.

The culmination of this work was of course the conference on June 1st – is the Child Protection System Fit for Purpose? I spoke about how surprised and pleased I had been at the number of people who came from such different walks of life and how the parents who came were also so happy to be able to speak in a room full of professionals without feeling judged or ashamed.

I hoped that what we had discussed at this conference would continue to be part of an ever forward moving project to promote continued communication and continued change for the better. It was very interesting to hear from some of the parents that the conference had made them think about their own attitudes to social workers and what they needed to change. But it sadly confirmed just how deep are the current levels of distrust and fear between families and professionals.

 

What’s happening in Finland to improve communication between parents and professionals?

I then listened to very interesting presentations from two groups that work with parents and children in Finland. The key message was how parents and children are engaged to work with the process.

Children

Finland seems far ahead of the UK in its willingness to recognise the continuing importance in the child’s life of loved family members. The view is that care away from families should be for a short time and that children should go home – adoption is currently not possible in Finland.

(EDIT – this is what I was told by the Finnish delegates, but it does not seem to be true! Please see this post by Claire Fenton Glynn. I will attempt to find out more and clarify this position. Edit 9th August 2015, Claire Fenton Glynn clarifies the position in this post.)

But if a child can’t go home, the family remains important. There was also recognition that professionals should not be ‘gate keepers’ to a child’s participation in the system; they should ask the child if he/she is ready to participate.

The Lahemmas (‘closer’) project is part of the Pesapuu organisation, which is a nationwide child welfare association bringing expertise to the field of child welfare. Lahemmas seeks to enhance the recognition of family relationships in child protection in Finland.  Its goals are:

  • to promote the relationships of children and their loved ones and their right to be heard
  • to reinforce expertise of experience in developing child protection
  • to provide support for children and families to cope with the help of relatives and other important people
  • to find solutions in child protection based on the help and support of people close to the child.
  • to create new child-orientated methods in social work which take parents, relatives and people close to a child into account.

 

Parents

With regard to parents, the group Voikukkia (‘Dandelions’ or ‘can bloom’) was set up in the early 2000s when it was discovered that the parents of placed children often remained without support and were left alone to deal with the crisis of that removal. The group recognises the shame parents can feel when their child is in care and are determined that no one should feel alone in the process.

The group’s objectives are:

  • to justify and convince others about why parental support after custody removals is important and worthwhile. The parent’s own voice is a crucial element in this.
  • to disseminate their proven peer support group methods, so that Voikukkia peer support groups would be available to all who need it.
  • to train professionals and experienced parents of the group to become the peer support group facilitators, as well as better identify the need for assistance of families in crisis.

Voikukkia now has more than 200 trained instructors in different parts of Finland and has published a book about parents’ experiences.

 

Take the leap of co-working

Both groups promote engagement between children, parents and professionals.  At first, ‘co-working’ with families had seemed like an impossible step but now in Finland it is difficult to think of developing the child protection system without the parents and children having input and we were urged to ‘take the leap of co-working’  – this struck an immediate chord with those following the CPR twitter feed in the UK and was the most re-tweeted comment from the session.

This is very far from my own experience as a lawyer at the adversarial end of  the child protection system but clearly brings with it enormous benefits. I am interested to keep exploring the Finnish model and hope to bring some of the speakers over to #CPConf2016 – watch this space.

 






I don’t want my child to be adopted

What can I do?

it will depend at what stage of the proceedings you have reached and what orders have already been made. A child can only be adopted when three orders have been made – a care order, a placement order and finally, an adoption order. Care and placement orders are usually made at the same time.

  • A care order allows the State to decide where your child should live and who spends time with him or her.
  • A placement order allows the State to put your child with a family that may decide to adopt him or her.
  • An adoption order confirms that this family is now the legal family and the birth parents no longer have any legal connection to their child.

So which situation are you in? This post will discuss only the LAST TWO. If you want to challenge a care order – see this post.

  • Parents are currently in care proceedings and no final order has been made It is really important that parents argue their case in the care proceedings while they are happening – you need to engage with the case against you at the time as it may be too late to do anything to change the situation once a care order is made.
  • Final care order made but no placement order. If a placement order hasn’t been made yet, you may be able to appeal against the care order or apply to discharge it.
  • Final care order and placement order made – Parents can apply for leave to revoke a placement order under section 24 of the ACA 2002, IF:
    • their child hasn’t yet been placed for adoption; and
    • they can show a ‘change of circumstances’ since the placement order was made.
    • The form to make an application to revoke a placement order is here. 
    • The court has confirmed that a Judge should look at the welfare checklists in both the Children Act and the Adoption and Children Acts when making decisions about these cases 
  • Potential adoptive parents have applied for an adoption order – Parents can apply for permission to contest the making of an adoption order under section 47(7) of the ACA 2002 but only if they can show a ‘change of circumstances’.
  • The adoption order has been made – can I overturn it? – this is rare but possible. See discussion below.

Challenging an application for an adoption order

Don’t waste time

Remember – UK law is compatible with the ECHR

It is always better to make your challenges and objections during the care proceedings. It is essential to challenge a care order as soon as possible if you do not consider it was validly made – it is too late to wait until the time that applications are made to apply for adoption.

Don’t waste time arguing that UK law is not compliant with international law. In the case of G (A Child) [2017] EWCA Civ 2638 (08 November 2017) the father wanted the court to declare that the Adoption and Children Act 2002 was not compatible with the European Convention on Human Rights. The Court of Appeal referred to Re CB (A Child) (No. 2) (Adoption Proceedings: Vienna Convention) [2016] 1 FLR 1286 in which Sir James Munby President said at paragraph 83:

“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 UK’s international obligations or, specifically, with its obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. There is nothing in the Strasburg 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.”

If you are arguing about the care proceedings when faced with adoption order – you’ve already lost

There is a useful and clear discussion about the process in the case of A and F (children) [2015] where a mother argued that her children should not be adopted but this argument was based on an assertion that the care orders should not have been made in the first place. Therefore, she did not accept that any criticism could be made of her parenting and she was unable to engage with the essential steps to challenge her children’s adoption – that she must show ‘a change of circumstances’

As the Judge commented at para 26 of his judgment:

Indeed, the majority of the mother’s statement is concerned with the repetition and correction of perceived past wrongs sustained by her. This was also the position with regard to her oral submissions. This means that inevitably she does not accept as a “starting point” District Judge Shaw’s decision nor his findings. As a matter of logic, therefore, she finds it impossible to address the issue of “changes in circumstances” because broadly her parenting circumstances, when the children were removed, were perfectly acceptable and therefore no change is required. Accordingly, an intellectual impasse results.

 

So what do you have to do?

  • Step One: establish a change of circumstances. The court has already decided by making a final care order that the parent has caused or is likely to cause a child significant harm. Therefore the parent must show the court what is different NOW. This is discussed in more detail below;
  • Step Two: convince the court it is right to give permission to argue against an adoption order being made.  This means that the court will look at all the relevant issues in the case and think about what the impact would be on the children. The children’s welfare is the most important consideration for the court. If the parent doesn’t succeed in getting permission, the matter ends there.
  • Step Three: Persuade the court to refuse an adoption order IF a parent is given permission to argue against the making of an adoption order, they will have to persuade the court to reverse the direction in which the children’s lives have travelled since the Care and Placement proceedings. Obviously, the longer the children have been in their potential adoptive placement, the harder this will be.

Although the courts try to separate out the different questions, to make it easier to analyse the issues, it is clear that each question has the potential to be significantly wrapped up in the other questions. For example, the ‘prospect of success’ the court is looking at refers to your prospect of success in challenging the order, NOT your prospects of success in getting your child home.

However, if you have very little chance of persuading the court that the child should come home, that issue is certainly going to be on the court’s mind. It is very difficult to successfully challenge placement or adoption orders,  as by the time such challenge is made the child has been living away from the parents for many months, even years and the court is going be worried about the impact on the child of possibly another move from a home where they may now be settled.

In Re L [2014] 2FLR 913 at paragraph 45, Lady Justice Black said this:

“When a judge considers a parent’s prospect of success for the purposes of section 47(5), he is doing the best he can to forecast what decision the judge hearing the adoption application is going to make having the child’s welfare throughout his life as his paramount consideration. What is ultimately going to be relevant to the decision whether to grant the adoption order or not must therefore also be material at the leave stage.”

STEP ONE – what does ‘change in circumstances’ mean?

It’s a matter of fact and it has to be relevant. Case law gives us the following principles :

  • The test should not be so difficult that it rules everyone out – parents shouldn’t be discouraged from trying to improve their lives.
  • The changes must be relevant to the question of whether or not leave should be granted – for e.g. if the worry was originally that you drink too much, have you stopped or cut down?
  • The changes are not confined to those of a birth parent, but they may include changes occurring in the child’s life (see Re T [2014] EWCA (Civ) 1369).
  • The necessary change in circumstances … does not have to be “significant”; the question is whether it is “of a nature and degree sufficient, on the facts of the particular case, to open the door to the exercise of the judicial discretion to permit the parents to defend the adoption proceedings”: Re P (Adoption: Leave Provisions) [2007] EWCA 616, [2007] para 30 – discussed in Re T [2014] in context of applying to revoke a placement order.

There is a useful article here by suesspiciousminds which considers the relevant case law in this area, and in particular the case of The Borough of Poole v W [2014] EWHC 1777. The Judge concluded at paragraph 25 of his judgement that the parents could not succeed, despite making considerable changes to their lives:

I have considered this case with the most anxious care, considering how much is at stake, both for parents and prospective adopters who happily all have a real understanding of each other’s predicaments. However, above all what is at stake for SR? There can be no blame attached to any of the four adults for why we have all ended up where we have. Nevertheless, a decision of profound significance has to be made. In the end, I have reached a clear conclusion that there is only one route which will sufficiently safeguard the welfare of SR and that is the route of adoption.

My real concerns about SR’s ability to survive the process of rehabilitation and the parents’ ability to sustain her care, whatever her reactions throughout her childhood, when seen in the context of their fragility and of the consequences to SR of a failure of rehabilitation and the need to then start all over again. All those matters when drawn together, in my judgment, require that adoption be provided as the way of securing her welfare and therefore require that the court dispenses with the parents’ consent. In making the order which, in my judgment, promotes the welfare of SR, I fully recognise the grief of the parents who do not share my view and I recognise that I have no comfort to offer them, beyond letterbox contact. If ever an example was needed of how legitimate and heartfelt aspirations of parents can be trumped by the welfare needs of the child, this surely is it.

For an example of a case where a mother succeeded in appealing against the initial refusal to allow her to argue against a placement order, see the case of G (A Child) [2015] EWCA Civ 119, discussed in this post by suesspiciousminds. The Court of Appeal agreed that a change to the child’s circumstances could also be relevant:

The “change in circumstances” specified in section 24(3) of the 2002 Act is not confined to the parent’s own circumstances. Depending upon the facts of the case, the child/ren’s circumstances may themselves have changed in the interim, not least by reason of the thwarted ambitions on the part of the local authority to place them for adoption in a timely fashion. I would regard it as unlikely for there to be many situations where the change in the child’s circumstances alone would be sufficient to open the gateway under section 24(2) and (3) and I do not suggest that there needs to be an in-depth analysis of the child/ren’s welfare needs at the first stage, which are more aptly considered at the second , but I cannot see how a court is able to disregard any changes in the child/ren’s circumstances, good or bad, if it is charged with evaluating the sufficiency of the nature and degree of the parent’s change of circumstances.

The case of P (A Child) [2018] EWCA Civ 1483 (28 June 2018) allowed a mother’s appeal against the refusal to grant her an adjournment before making a placement order. Although there had been long standing concerns about her alcoholism, she had developed considerable insight and   made significant progress – she had done ‘all’ that could be expected of her. The Court of Appeal rejected the suggestion that a six month adjournment served ‘no purpose’ given that the plan for a 6 month old baby was adoption.

Further reading about ‘change of circumstances’.

 

STEP TWO: If there is a change of circumstances, should the court give you permission to challenge the adoption order?

In relation to Step two this an issue of judicial evaluation or discretion which means that different judges can and do make different decisions but could not necessarily be challenged on appeal. ‘Exercising a discretion’ means you are making your own value judgment and there is usually a pretty wide range of possible outcomes that would be accepted. Provided of course that the Judge has applied the correct law and facts.

The parent must have ‘solid grounds’ for making the application. Paragraph 74(i) to (x) of Re B-S identifies the features to be weighed in the balance.

  • Prospect of success here relates to the prospect of resisting the making of an adoption order, not the prospect of ultimately having the child restored to the parent’s care.
  • The issues of ‘change in circumstances’ and ‘solid grounds for seeking leave’  are treated as two separate issues in order to analyse them BUT in reality they are inter-linked and one may follow the other
  • If the Judge finds a change of circumstances AND solid grounds for seeking permission, the Judge must then consider child’s welfare very carefully.
  • The judge must keep at the forefront of his mind the teaching of Re B, in particular that adoption is the “last resort” and only permissible if “nothing else will do” and that, as Lord Neuberger emphasised, the child’s interests include being brought up by the parents or wider family unless the overriding requirements of the child’s welfare make that not possible.
  • But, the child’s welfare is paramount.
  • To find out what the child’s welfare needs, the judge must take into account ‘all the negatives and the positives, all the pros and cons, of each of the two options, that is, either giving or refusing the parent leave to oppose. The use of Thorpe LJ’s ‘balance sheet’ is to be encouraged.
  • The court needs proper evidence, but this doesn’t always have to be evidence from people speaking to the court. Often applications for leave can be fairly dealt with on written evidence and submissions.
  • As a general proposition, the greater the positive change in circumstances and the more solid the parent’s grounds for seeking leave to oppose, the more significant must be the detrimental impact on the child if the court is going to refuse to give them permission to challenge the adoption order.
  • The fact a child is now living with the prospective adopters or that a long time has passed, cannot determine the matter.
  • BUT the older the child and the longer he/she has been living with the prospective adoptions, the worse it is likely to be to disturb that.
  • The court should not attach too much weight to any argument that the proceedings are having an adverse impact on the prospective adopters – but this isn’t a trivial point and judges must try to minimise this impact by robust case management.
  • The judge must always bear in mind that what is paramount in every adoption case is the welfare of the child “throughout his life”.

Given modern expectation of life, this means that, with a young child, one is looking far ahead into a very distant future – upwards of eighty or even ninety years. Against this perspective, judges must be careful not to attach undue weight to the short term consequences for the child if leave to oppose is given. In this as in other contexts, judges should be guided by what Sir Thomas Bingham MR said in Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124, 129, that “the court should take a medium-term and long-term view of the child’s development and not accord excessive weight to what appear likely to be short-term or transient problems.” That was said in the context of contact but it has a much wider resonance: Re G (Education: Religious Upbringing) [2012] EWCA Civ 1233, [2013] 1 FLR 677, para 26.

The court will be well aware of the seriousness of adoption and the decision of the Supreme Court in the case of Re B [2013] 1WLR 1911.

See also W (A Child: Leave To Oppose Adoption) [2020] EWCA Civ 16 (21 January 2020) where the appeal court agreed the parents should be given permission to argue against the making of an adoption order.

 

STEP THREE: Will the court reverse the ‘direction of travel’ for the child and refuse to make an adoption order?

It is quite rare for the court to refuse to make an adoption order. One example of such a case is A and B v Rotherham Metropolitan Borough Council [2014] which is the first since the 2002 Adoption Act. The court removed the child from the home of the potential adoptive parents – where he was settled – to live with his paternal aunt. It is clear that the court must consider the child’s welfare throughout his life – as the Judge commented here, this could mean 80 years or more.

The Judge commented at paragraph 95:

This case clearly requires taking both a short term and a long term view. C is currently very well placed with “perfect adopters”. They are a well trained couple with whom he is very well attached. He is of mixed race. They are both white and share with him that half of his ethnicity. A and B are “tried and tested” as has been said. His aunt and the principal members of the paternal family are black and share with him that half of his ethnicity. The aunt is a single person. She has not been “tried and tested” as a carer for C, but she has been observed as a carer of her own child, G, and thoroughly assessed as entirely suitable to care long term for C. There would be likely to be short, and possibly long term harm if he now moves from A and B to the aunt, but that is mitigated by his embedded security and attachments with A and B, and can be further mitigated by specialist training and support for the aunt, which she will gladly accept. The unquantifiable but potentially considerable advantage of a move to the aunt is the bridge to the paternal original family.

It is my firm judgment and view that it is positively better for C not to be adopted but to move to the aunt. In any event, I certainly do not consider that making an adoption order would be better for C than not doing so. Accordingly I must, as I do, determine not to make an adoption order and must dismiss the adoption application. Pursuant to section 24(4) of the Act, I exercise a discretion to revoke the placement order made in respect of the child on 2 August 2013.

The Judge had this to say about the ‘nothing else will do’ test at paragraph 15:

With so many Article 8 rights engaged and in competition, it does not seem to me to be helpful or necessary in the present case to add a gloss to section 1 of only making an adoption order if “nothing else will do”… Rather, I should simply make the welfare of the child throughout his life the paramount consideration; consider and have regard to all the relevant matters listed in section 1(4) and any other relevant matters; and make an adoption order if, but only if, doing so “would be better for the child than not doing so”, as section 1(6) requires.
If the balance of factors comes down against making an adoption order, then clearly I should not make one. If they are so evenly balanced that it is not possible to say that making an adoption order would be “better” for him than not doing so, then I should not do so. If, however, the balance does come down clearly in favour of making an adoption order, then, in the circumstances of this case, I should make one. I do not propose to add some additional hurdle or test of “nothing else will do”.

The decision of the Court of Appeal in July 2016 in W (A Child) [2016] EWCA Civ 793 dealt explicitly with four very important questions:

  • The approach to be taken in determining a child’s long-term welfare once the child has become fully settled in a prospective adoptive home and, late in the day, a viable family placement is identified;
  • The application of the Supreme Court judgment in Re B [2013] UKSC 33 (“nothing else will do”) in that context;
  • Whether the individuals whose relationship with a child falls to be considered under Adoption and Children Act 2002, s 1(4)(f) is limited to blood relatives or should include the prospective adopters;
  • Whether it is necessary for a judge expressly to undertake an evaluation in the context of the Human Rights Act l998 in such circumstances and, if so, which rights are engaged.

The court said this about the ‘nothing else will do’ test at paragraph 68 of their judgment:

Since the phrase “nothing else will do” was first coined in the context of public law orders for the protection of children by the Supreme Court in Re B, judges in both the High Court and Court of Appeal have cautioned professionals and courts to ensure that the phrase is applied so that it is tied to the welfare of the child as described by Baroness Hale in paragraph 215 of her judgment:
“We all agree that an order compulsorily severing the ties between a child and her parents can only be made if “justified by an overriding requirement pertaining to the child’s best interests”. In other words, the test is one of necessity. Nothing else will do.”
The phrase is meaningless, and potentially dangerous, if it is applied as some freestanding, shortcut test divorced from, or even in place of, an overall evaluation of the child’s welfare. Used properly, as Baroness Hale explained, the phrase “nothing else will do” is no more, nor no less, than a useful distillation of the proportionality and necessity test as embodied in the ECHR and reflected in the need to afford paramount consideration to the welfare of the child throughout her lifetime (ACA 2002 s 1). The phrase “nothing else will do” is not some sort of hyperlink providing a direct route to the outcome of a case so as to bypass the need to undertake a full, comprehensive welfare evaluation of all of the relevant pros and cons (see Re B-S [2013] EWCA Civ 1146, Re R [2014] EWCA Civ 715 and other cases).

The court was clear that there is NO ‘presumption’ or ‘right’ for a child to be brought up by natural family and that those assessing the case had wrongly believed there was – thus the focus on the impact of removing A from the only parents she had known for 2 years, was not properly considered.

The issue is only and always the child’s welfare. The matter was returned to another judge for a re-hearing. It will be interesting to know the outcome.

 

Time Limits for Appeals.

For more detailed discussion of the rules that apply to time limits, see this post about appealing against a care order. It is very important that you tell the court that you want to appeal and why you want to appeal within 21 days of the decision you want to challenge.

The court have considered appeals out of time in the case of re H (Children) [2015] and emphasised how important it is to stick to time limits in children cases. Although the father in this case was allowed to appeal some 8 months after the first decision, the court emphasised that this was ‘exceptional’. See paras 33 and 34 of the judgment:

33.As a matter of law, if no notice of appeal is lodged during the 21 days permitted for the filing of a notice, a local authority should be entitled to regard any final care order and order authorising placement for adoption as valid authority to proceed with the task of placing the child for adoption. If that process has subsequently to be put on hold in order to allow a late application for permission to appeal to be determined, the impact upon the welfare of the child (particularly where prospective adopters who have been chosen may be deterred from proceeding) is also too plain to contemplate.

34. The problem that I have described is a necessary difficulty that arises from our system which contemplates that, notwithstanding the expiry of the 21 day period for lodging a notice of appeal, the court may, where to do so is justified, permit an appeal to proceed out of time. There will thus inevitably be a period after a late application for permission to appeal where time is taken to process the application before it is determined. Whilst accepting the inevitability of this source of, in some cases, highly adverse impact on the welfare of a child, every effort should be made to avoid its occurrence. One strategy which would seek to avoid the problem would be for the judge in every case where a final care and placement for adoption order is made to spell out to the parties the need to file any notice of appeal within 21 days and for the resulting court order to record on its face that that information was given to the parties by the judge. Secondly, this court and any appellate judge in the Family Court, must continue to strive to process any application for permission to appeal in a public law child case with the utmost efficiency. Finally, the fact that an application for permission to appeal which relates to a child in public law procedure is out of time should be regarded as a very significant matter when deciding whether to grant ‘relief from sanctions’ or an extension of time for appealing.

The adoption order has been made – can I challenge it?

This is very rare – but possible. However, those cases where adoption orders have been overturned appear to rest on procedural flaws in the application, not on the merits or otherwise of the adoption. The Websters for example, were denied the opportunity to challenge the adoption of their children on the basis that the children had lived apart from them for so long, it would not be in the children’s interests to remove them from their adoptive homes.

The case of, ZH v HS & others [2019] EWHC 2190, gives a clear example of how mistakes made in how the adoption order was applied for and made, were so serious that they undermined the whole basis for the order and it was set aside.

T and her mother ZH tried to come to the UK from Somalia to claim asylum .T ended up with the maternal aunt and uncle who asked social workers to help them regularise T’s status with them. They didn’t get legal advice but went to a CAB and filled in the forms to make an application to adopt T, saying ZH was missing – as they didn’t know where she was. T’s mother then managed to enter the UK two years later. She was clearly out of time to appeal against the making of an adoption order so she applied under the court’s inherent jurisidiction to set it aside. Every one agreed by the time this got to court in 2019, this was the right thing to do and T should be looked after by her mother.

The court was very critical about how the adoption order ever came to be made, calling the process ‘flawed’ and ‘replete with errors and omissions’, not least the correct notice wasn’t given to the LA and there were no checks on the uncle and aunt and no guardian appointed for T.

It is indeed really worrying to think that such an application got through a court process without anyone apparently noticing such significant procedural failings and there is no surprise that the High Court found these errors were so serious they tainted the whole process; the adoption order could not stand.

However, we are waiting for the Court of Appeal’s full judgment on another case where a mother has attempted to use the inherent jurisdiction to over turn an adoption order – her appeal was dismissed in June 2021 and it will be interesting to read the full reasons. 

See further Julie Doughty’s discussion at The Transparency Project, ‘Can an adoption order be undone?’

I have taken the photograph above from this blog post – How does it feel to be adopted?

What is significant harm? And how do we prove it?

I wonder how deep the murky waters of sub-optimal care need to be before it is deemed as “significant harm.”

Kate Wells, a retired social worker considers the recent judicial criticism of social worker’s ability to analyse the case before them and provide the necessary evidence of ‘significant harm’. She notes that the distinction between ‘sub-optimal care’ and ‘significant harm’ is not always that easy to find – and what does it say about us as a society that we have such low expectations for so many children?

 

When the courts criticise social workers for not providing evidence of ‘significant harm’

I do wonder why the LA lawyers are not picking up on this, and whether some of the blame should be placed in their direction. In my view it is unfair for criticism to fall on the social worker who has failed to provide the evidence to prove significant harm.  The Team Manager should pick up the shortfall and if he/she fails in this way, then the LA lawyer most certainly should not fail to spot the lack of evidence to support the LA’s case.

Pressures on the newly qualified social worker

I am aware that newly qualified social workers are most definitely “thrown in at the deep end” in this day and age. Whereas, when I qualified in 1980 I was supported by experienced workers who had the time and motivation to coach me in social work practice, and this enabled me to gradually grow in confidence and become a credible and competent practitioner.

I do have some direct experience of poor quality social work and the reasons behind this, as from 2005 to 2009 I worked independently and carried out work for various LAs including Birmingham City Council. They were during those years, operating with approx. 30% vacancy rates. There were high levels of sickness with stress related illnesses and a reliance on agency social workers. There were struggles with excessively high caseloads which unsurprisingly left social workers feeling overwhelmed, stressed and de-moralised and managers seemed to lack the competence required to assist and support their social workers, but particularly the newly qualified.  I spent a lot of my time carrying out this task myself on an informal basis of course.

I believe that in the intervening years, the situation in social care nationally has reached crisis point.  I attribute this to the fact that the government have demanded all public services make massive savings in their budgets, with the result that they are largely unable to cope with their statutory responsibilities and this is certainly the case for Children’s Services.

Now that the Conservatives are re-elected I believe that the situation will deteriorate further, as they pursue their privatisation agenda.  Allied to this is the fact that there is a dearth of social workers who are opting to work in child protection and who can blame them – to coin a phrase “They are damned if they do and damned if they don’t.”

It is highly stressful and sometimes dangerous work, and if a child on your caseload dies at the hands of the parent or some family member, then you will be pilloried by all and sundry.  The Director of Children’s Services will be on TV talking about “learning the lessons” and I am frustrated to the point that I shout at the TV – “why don’t you tell the truth – that no amount of learning lessons will prevent these horrendous child deaths at the hands of their parents/step-parents – RISK CAN NEVER BE TOTALLY ELIMINATED no matter how many risk assessments are undertaken.

It’s small wonder people unconnected to child protection are frustrated too, because they keep hearing the same things parroted each time there is a tragedy.  Following procedures, working together with other agencies and close monitoring of a child at risk of abuse/neglect will NOT save that child when they are in the hands of an individual who is capable of inflicting serious harm on a child.  Sad but true.

 

The particular criticisms in A (A child) [2015]

What the social worker got wrong

I can see only too clearly the fundamental flaws in the social work assessment, and maybe the first flaw is that it was undertaken by a newly qualified social worker which is highly irresponsible BUT probably because there was no alternative.

It appeared that the social worker had decided the father was a “bad lot” and then proceeded to scrabble around to dig up as much dirt as she could.  All that nonsense about whether or not he was present when his friend was killed on the railway.  I can’t believe they went chasing after evidence as to whether he was there or not – what did it matter that he was engaging in a bit of hyperbole.  But this was used to try to prove that the father told lies about everything.

More nonsense with all the USI rigmarole.  Dear god, he was 17 and the girl 13, not ideal of course, but I could barely believe how the social worker had contrived to label this as child sexual abuse and the whole immorality issue and how this might affect his son. I’m not surprised the bloke got angry and accused them of “throwing this back in his face” and quite how she came to the conclusion that he was a risk to “vulnerable young women” is unfathomable.

The other great mistake was all the stuff about the EDL.  I’m sure many of us look upon this group with contempt BUT it is a democratic society and as the Judge pointed out there was no link between the father’s involvement in the group with “likely significant harm” to the child.  It seems the mother decided to have a “walk on part” by insisting to the social workers that the father was still very much a part of the organisation, although he was denying this was the case. How could the social worker  not question the motives of the mother in making these claims?  And whether he was or wasn’t still a member of the organisation is neither here nor there, as the Judge pointed out.

 

What the judge got wrong

It wasn’t clear whether the father knew about the mother’s sexual offences before or after she became pregnant with A.  It was difficult to prove one way or other I know, but there was no mention of the mother’s account of this issue – did they not bother to discuss this with her, or did she back up the father and so they decided against including it in the assessment.  However the Judge decided that the father was being truthful and didn’t know about the sexual offences until the Court hearing.  He didn’t say on what basis he made this decision.  Is it not for him (or any other Judge) to make it clear in their Judgement the reasons for their decisions about the truthfulness (or otherwise) of witnesses?

I was also concerned about the fact that the father was on his 3rd relationship in a relatively short space of time, demonstrating that he was unable to sustain lasting relationships, which would in fact cause emotional harm to a young child, especially as based on past experience, this young child was likely to have a series of “step-mothers” and so no continuity of care.  Maybe the Judge would have discarded this too, as failing to prove significant harm.

The issue of the conflict between father  and his 1st partner H and the reasons for the separation, and the allegations about bruising to the children whilst in his care, should have been thoroughly investigated and fully outlined in the assessment.  Maybe it was, as I haven’t seen the full report obviously, and I know there was some reference to comments made by a CAFCASS social worker  but it all appeared to be inconclusive and the Judge threw it out again as failing to prove likely significant harm, which indeed it did, but I think it was a serious omission by the social worker..

The issue of the father’s relationship with J I found very worrying.  There seems to be no doubt that the father  deliberately failed to mention that he was in a relationship with J and the report did evidence the fact that this was the case as they had evidence that the pair had made a joint housing application.  I don’t believe the father didn’t realise he should have mentioned his relationship with J in the assessment.  Clearly he was keeping it quiet in the knowledge that if the LA discovered J’s child had been removed from her care it would significantly weaken his case, which indeed it should have in my opinion.  His parents were complicit in this omission too.  I think this issue (probably above anything else) demonstrates that the father  is unable or unwilling to put the needs of the child before his own needs, in his choice to form a relationship with J, knowing about her child being removed from her care.  He was happy for her to become a substitute mother to his own son. 

I am aware that the father later stated that his relationship with J had ended and I was astonished to read that the Judge stated quite categorically that the father said the relationship had ended and “I believe him………..”  I DON’T – not for a single minute!  Again there was nothing about what had led him to believe the father on this important issue.

The thing is Judges have absolutely no idea of how the parents caught up in care proceedings live their lives (I don’t want to sound judgemental) but am aiming for realism.  I know it would be difficult for the social workers to prove that they were no longer in a relationship, but not beyond the realms of possibility.  I wouldn’t rule out the possibility of the father  returning to his relationship with the mother either, or allowing her to have unsupervised contact with her son.

I realise I couldn’t prove this in any way shape or form, but I think it is a huge problem, that Judges and lawyers can have no idea of the mismatch between their own lives and those of the parents who are opposing the LA’s application in care proceedings.  In my experience most of these parents live a chaotic lifestyle, often engaging in “serial monogamy” often characterised by domestic violence, and drug and alcohol abuse.  think that Judges and lawyers can have absolutely no understanding of the way in which the parents for whom they act, and are caught up in care proceedings, actually live their lives.  I make this assertion not as a criticism but an observation.

I shared the social worker’s concerns about the conflict between the father and his parents, particularly his step-father and how the police had been involved on at least one occasion.  Again I was astonished by the Judge’s comments that he had observed the father’s mother and step-father in court and had formed the view that there was a mutually supportive relationship between them! (or something similar)  How naïve is that??   He has come to this conclusion simply by observation!  They are hardly likely to become involved in conflict in the court arena are they!

 

What was really in the child’s best interests?

I was pleased that the Judge stressed that the newly qualified social worker should never have worked on such a complex case, and that the failure to evidence “likely significant harm” should have been picked up by the TM and/or the LA lawyer.  It’s not surprising that the LA lawyer (unless it was outsourced in this case) gave up on most of the issues put forward by the social worker in her assessment.  Too late was the cry.  Maybe the LA are short of competent lawyers too?  The Judge also commented that Senior Managers should be held to account and I absolutely agree.  However he should also have cognisance of the fact that Children’s Services are buckling under the weight of having to make massive savings in their budgets, imposed by the Tories.  And I can guess where he put his cross on polling day!

The CG also appeared to be “hapless” and contradicted herself in her written and oral evidence.  However I believe that guardians are now inundated with work in the same way as LA social workers.  I will return to this issue later in these notes.

The real issue here though is that this little boy in my view should have been placed for adoption to give him the permanence and stability that he deserves.  He will almost certainly receive sub-optimal care with his father and frequent changes in substitute mothers.

The pity is that this case (and presumably so many others like it) was not handled by an experienced and competent social worker who understood the need to produce evidence to back up their case, rather than going off at a tangent on all sorts of irrelevant issues.  BUT I note the Judges believe that sub-optimal care is to be accepted for some children, rather than “good enough” parenting.  I wonder how deep the murky waters of sub-optimal care need to be before it is deemed as “significant harm.”

 

What’s going wrong in social work practice?

There has always been a marked inability for some social workers to actually analyse a situation

Lack of knowledge

I believe that many social workers have a lack of knowledge on the following issues:

  • Child development
  • The needs of the child at different ages and stages of childhood
  • The crucial importance of the very early years of life.
  • Attachment theory
  • The importance of observation of parent and child interaction
  • The ability to analyse this interaction and other relevant issues
  • The way in which ill treatment of a child can have an adverse effect on him throughout the lifespan
  • The child’s sense of time
  • The possibility of FAS in babies whose mothers abuse alcohol in pregnancy
  • The adverse effect on children witnessing sustained domestic violence
  • Sexualised behaviour in children
  • Frozen awareness/watchfulness in babies and children.

 

Whether these sorts of social work skills are taught on the new degree courses, I don’t know, but I somehow doubt it.  Moreover I think there is no likelihood that these skills will be learned in practice, given the lamentable lack of experienced workers with the time to coach newly qualified workers, allied to the overwhelming volume of work for social workers and managers alike.

Additionally I think that social workers became gradually de-skilled as it became custom and practice in care proceedings for birthparents to be assessed by a psychologist and there was an over reliance on his/her assessment.  There has always been a marked inability for some social workers to actually analyse a situation.  Assessments typically contain a great deal of factual information about a family, a lengthy description of the sequence of events, with dates when meetings/discussions dutifully recorded, but a LACK of analysis as to what all this really means.

As far as care proceedings are concerned, obviously social workers need to understand the importance of evidence based assessments and the need to prove significant harm.  Allied to this I think they need to have the courage of their convictions and “fight the child’s corner” with more spirit and determination in their assessments.  It isn’t enough to keep talking about the “best interests of the child” – it needs to be spelled out exactly what the child needs, what are those best interests, and what are the consequences of the child’s needs not being met. But this can’t be done without a working knowledge of the issues I outlined above.

 

Lack of confidence

Another issue is lack of confidence in the court arena.  I have rarely met a social worker (or Team Manager or Middle Manager) who is confident in this setting.  Indeed I would go so far as to say most social workers are intimidated by the process and this causes them a great deal of stress.

I’m sure that this lack of confidence is observable when they are giving evidence, especially in cross examination.  I may be doing social workers a dis-service here but somehow I think not.  I think they “undersell” themselves – they are the ones who know the family and the child/ren at the centre of the proceedings and will have seen at first-hand how the children are ill-treated, spent hours and hours with the family in their home surroundings and been involved in numerous meetings about the family, and the ones who have had disturbed sleep worrying over their cases, especially when newly qualified.  Lawyers don’t have the same kind of understanding about child care, nor would it be expected that they would have, but it is for social workers to recognise this and not be intimidated by lawyers/barristers acting on behalf of their clients.

Where barristers are instructed for the birthparents in care proceedings, I think there are added difficulties, as I believe there is a significant “mismatch” between the ability of the average social worker and the experienced and competent barrister who is extremely confident in the court setting.  Social workers may complete many years of practice and have very little experience of being involved in care proceedings, and maybe none at all, hence the court arena is a very unfamiliar place to them.  There are publications to assist social workers when giving evidence in the Family Courts, but certainly there was no formal training for social workers on this important issue during the time that I worked for a LA Children’s Services Department.

 

Why is it ok to leave some children in sub-optimal care?

Munby in his Judgement on the case commented “there’s more than a whiff of give a dog a bad name here……..”

In my view this acceptance that many children will receive sub-optimal care has “more than a whiff of – well they’re the children of the lower working classes so they’re never going to make much of their lives…………”

Possibly unfair of me – I don’t know.

BUT I think that we should be aiming for good-enough parenting.

I did wonder if the Judge had made his decision for the child to be brought up by his father as a sort of punishment to the LA for their failures in proving significant harm.  Possibly unfair – I don’t know.

There’s something I find very distasteful about this notion of sub-optimal care.  Why SHOULD these children not be cared for in a stable home where their needs are met – with “good enough” parenting?

If they are left in sub-optimal care they will struggle in school, they will almost certainly have behavioural and emotional difficulties, and this prevents learning at even a basic level.  They may well be assessed as having special educational needs, but this simply means they might have a Teaching Assistant to help them for an hour or so each day.  They will be lost in the class of 30 children.

In 1973 Peter Wedge and Hilary Prosser wrote “Born to Fail” – a sociological study of the way in which children born into a deprived background were indeed “Born to Fail”

Over 40 years on and little has changed.

 






Disputes between parents about seeing their children

This post looks at the law in cases following the parents separation, when the parents can’t agree about how the children should spend time with each of them. In cases where there is no evidence that contact with a non-resident parent would harm a child yet the resident parent claims contact would not be in the child’s best interests, can courts force parents out of their entrenched positions?

Sarah Phillimore, barrister at St John’s Chambers, looks at the issue and offers some practical advice.

This article was first published by Lexis on 19th May 2015 and has since been edited –  you can get more articles like this from Lexis at this web address www.lexisnexis.com/uk/lexisps

To what extent can or will the courts intervene to force parties out of entrenched positions?

Most experienced Family Court judges would acknowledge that there is a category of private law Children Act disputes which present profoundly difficult challenges to the court and which frequently cause judges near despair as they endeavour to achieve a positive and enduring outcome for the child. Descriptive language is used to highlight the complexity of these cases – for example, implacable hostility, intractable dispute, high conflict dispute.  In some of these cases the judge’s sense of despair at having failed to achieve a positive outcome for the child is palpable. In Re D (Intractable Contact Dispute: Publicity) [2004] EWHC 727 (Fam) Munby J memorably began his judgment by saying: ‘On 11 November 2003 a wholly deserving father left my court in tears having been driven to abandon his battle for contact with his seven year old daughter D.’

HHJ Bellamy 2018

Statute Law

The relevant statutory framework is found at section 1(1) and 1(3) of the Children Act 1989 (CA 1989). The child’s welfare is the paramount consideration and the court must have regard to the welfare checklist.

Section 8 allows the court to make what used to be called ‘contact’ and ‘residence’ orders but which are now ‘child arrangements orders’ following the Children and Families Act 2014 (CFA 2014).

The CFA 2014 also amended section 1 of the CA 1989 to include that when a court is considering a section 8 order, it must presume, unless the contrary can be shown, that the involvement of a parent in the life of a child will further the child’s welfare. ‘Involvement’ quite explicitly is not linked to any particular division of a child’s time. This amendment is thus very far from what father’s rights campaigners wanted; there is no presumption that children must spend their time 50/50 with each parent. It is difficult to see what practical change is provided by this amendment, as it offers a rebuttable presumption that is a reflection of existing law and practice.

General principles from case law.

The following cases provide general principles:

Each case is unique on its own facts and requires careful scrutiny. However, there are general principles which are usually applicable to every case:

  • the court is concerned with the interests of the mother and the father only in so far as they bear on the welfare of the child.
  • It is almost always in the interests of a child whose parents are separated that he or she should have contact with the parent with whom the child is not living. Contact should thus be terminated only in exceptional circumstances.
  • The court has power to enforce orders for contact, which it should not hesitate to exercise where it judges that it will overall promote the welfare of the child to do so.
  • The state has positive obligations to protect the Article 8 rights of parents and children. Thus, the judge must grapple with all the available alternatives before abandoning hope of achieving some contact. He must be careful not to come to a premature decision, for contact is to be stopped only as a last resort and only once it has become clear that the child will not benefit from continuing the attempt.
  • There are rare cases where the court decides that there cannot be immediate direct contact because that would injure the child’s welfare, see Re D (A Minor) (Contact) [1993] 1 FCR 964 at pp 971G–972A per Waite, LJ.
  • If there cannot be immediate direct contact there should be indirect contact so that the child grows up knowing of the love and interest of the absent parent with whom, in due course, direct contact should be established
  • It is an important part of the obligations of being a parent that the parents take responsibility for making contact work – see paras 72 onwards of Re W [2012].

EDIT 9th April 2019 – for a thorough review of relevant practice and principle see the Court Of Appeal decision in G (Children: Intractable Dispute) [2019] EWCA Civ 548

Potential problems with the courts’ approach.

The courts have unrealistic expectations about how parents will respond to pleas to act responsibly.

A horribly clear example of where the courts’ pleas fell on deaf ears is found in the D (A child – parental alienation) (Rev 1) [2018] EWFC B64 (19 October 2018) which is discussed below.

In Re H-B (Contact) [2015] EWCA Civ 389, the court heard that direct contact with the father and his two daughters had stopped in 2008. There was an incident in which the father’s new wife had been angry with the older girl and grabbed her, causing a superficial injury. The father appealed against the refusal of his application for direct contact. Both parents were found to have behaved poorly.

The President of the Family Division considered the obligations upon parents when a child refuses contact with the other parent.  See paragraph 75:

the responsibility of being a parent can be tough, it may be ‘a very big ask’. But that is what parenting is all about. There are many things which they ought to do that children may not want to do or even refuse to do: going to the dentist, going to visit some ‘boring’ elderly relative, going to school, doing homework or sitting an examination, the list is endless. The parent’s job, exercising all their parental skills, techniques and stratagems – which may include use of both the carrot and the stick and, in the case of the older child, reason and argument –, is to get the child to do what it does not want to do. That the child’s refusal cannot as such be a justification for parental failure is clear: after all, children whose education or health is prejudiced by parental shortcomings may be taken away from their parents and put into public care.

  1. I appreciate that parenting headstrong or strong-willed teenagers can be particularly taxing, sometimes very tough and exceptionally demanding. And in relation to the parenting of teenagers no judge can safely overlook the teaching of Gillick v West Norfolk and Wisbech Area Health Authority and anor [1986] AC 112, in particular the speeches of Lord Fraser of Tullybelton and Lord Scarman. But parental responsibility does not shrivel away, merely because the child is 14 or even 16, nor does the parental obligation to take all reasonable steps to ensure that a child of that age does what it ought to be doing, and does not do what it ought not to be doing. I accept (see Cambra v Jones [2014] EWHC 2264 (Fam), paras 20, 25) that a parent should not resort to brute force in exercising parental responsibility in relation to a fractious teenager.  But what one can reasonably demand – not merely as a matter of law but also and much more fundamentally as a matter of natural parental obligation – is that the parent, by argument, persuasion, cajolement, blandishments, inducements, sanctions (for example, ‘grounding’ or the confiscation of mobile phones, computers or other electronic equipment) or threats falling short of brute force, or by a combination of them, does their level best to ensure compliance. That is what one would expect of a parent whose rebellious teenage child is foolishly refusing to do GCSEs or A-Levels or ‘dropping out’ into a life of drug-fuelled crime. Why should we expect any less of a parent whose rebellious teenage child is refusing to see her father?’ 

The ‘tough’ approach of the court cannot however be a a solution to the problem of intractable contact disputes, because it does not adequately or even at all address the following circumstances:

  • The increasing autonomy of the older child.
  • The resident parent who simply will not or can not support a relationship with the other parent.

The older child

For older children, the suggestions by the sir James Munby that it is a straightforward matter of simply exercising a bit of parental muscle to bribe or compel a child, does not reflect the reality of the child’s growing autonomy. Various cases demonstrate that it is likely that the child will simply refuse to do what is expected and may even react in quite extreme ways to the expectation: see for e.g Re K (Children) [2014] EWCA Civ 1195 where the children simply ran away.

Of course, parental responsibility does not ‘shrivel away’ when dealing with a Gillick competent teenager, but as a child’s autonomy develops, the ability of a parent to impose his or her will inevitably decreases. A parent simply cannot dictate to a 15 year old as if he were 5 or even 10 years old. To do so is likely to be emotionally abusive and ineffective.

This is reflected in section 9(6) of the CA 1989; section 8 orders will only be made for children over 16 if the circumstances are ‘exceptional’.  In reality, many judges will be wary of imposing orders upon teenagers even younger than 16; recognizing that they can and do ‘vote with their feet’.

The parent with whom the child lives does not support contact

This second part of the problem is not even touched upon in re H-B; the mindset of the resident parent and the impact of this on the child. The likely reality in many cases is that the resident parent has consistently exposed the child to a very negative view of the absent parent. In terms of the impact of this on the child, it probably doesn’t matter what motivates the resident parent, be it genuine belief or something more malicious. The child will absorb the resident parent’s reality. What else can they do?

These problems are then further compounded if the child has not seen the absent parent for some time and/or was very young at the last meeting and therefore has little or no independent memory of the absent parent.

In such cases, experts consider it unlikely – even impossible – that a child living in such circumstances can start thinking positively about the absent parent. The resident parent will assert that it is simply not in the child’s best interests to have this positive view. It is not possible to force therapeutic work on an unwilling resident parent.

The parent who deliberately alienates a child

Discussion of D (A Child – parental alienation) 2018

A very interesting case about parental alienation has been published by the DFJ for Derbyshire, HHJ Bellamy. This is D (A child – parental alienation) (Rev 1) [2018] EWFC B64 (19 October 2018). This case involved the child D who was born in 2005. Proceedings had been ongoing for over ten years, albeit with a four year respite from 2012 – 2016,  and had cost a staggering amount of money for both parents – about £320,000 over ten years. A judge hearing the case in 2008 commented: ‘On the face of it this is already a dispute which is going to escalate, or has the potential to escalate and the risk is that D will be damaged by these matters.’  And sadly, that is exactly what came to pass.

There was a residence order made in the father’s favour in 2011 and the mother’s application to appeal was refused in 2012. Following a relatively peaceful four years, the mother then refused to return D to his father’s care in November 2016 and the father did not see D again until March 2017. A final hearing was listed for April 2018 after the instruction of a psychologist. We can see clearly in this chronology how such cases often end up drifting.

in early 2018 D made allegations of a serious assault upon him by the father and contact against ceased. The police became involved but took no further action and the Judge granted the father’s application in August 2018 that D give evidence at the finding of fact hearing.

D gave evidence and was very clear, saying (para 74):

I just want a normal life, living in happiness with mum. I cannot go back to my father’s. I was promised by my mum and the police officer that dad wouldn’t hurt me ever again. Now, I am here in court because he hurt me bad. Why can’t I just have a life that isn’t based on court and stress? I just want a life that I can live not live in fear from, please.’

D’s guardian put forward a schedule of six allegations that D made against his father. The court noted the evidence of the psychologist Dr Spooner at para 85.

D presented with what seemed like a pre-prepared and well-rehearsed script of all the things he wanted to tell me about his father. He took every opportunity to denigrate him, his family and his partner. Each time I attempted to ask him about issues not related to his father, such as school, hobbies and so on, he quickly derailed himself and continued on his frivolous campaign of denigration.

The court heard a great deal of evidence from social workers and other experts about the alleged injuries suffered by D. It is disturbing to note how the Judge was not assisted by some of the evidence from the local authority, not least because the social worker who prepared the section 37 report was working from the assumption that everything a child said must be true.

The father denied assaulting D but had to hold his arms when D was being aggressive towards him.  The Judge did not find any of the allegations proved; he found the father and his partner to be honest witnesses and this was a case where the mother was determined to ‘win’ at any cost. The judge found that she had deliberately alienated D from his father.

Analysis of what is meant by ‘parental alienation’

From paragraph 165 the Judge considers the issue of parental alienation. At para 169 he refers to the research Dr Julie Doughty at Cardiff University. She comments:‘

There is a paucity of empirical research into parental alienation, and what exists is dominated by a few key authors. Hence, there is no definitive definition of parental alienation within the research literature. Generally, it has been accepted that parental alienation refers to the unwarranted rejection of the alienated parent by the child, whose alliance with the alienating parent is characterised by extreme negativity towards the alienated parent due to the deliberate or unintentional actions of the alienating parent so as to adversely affect the relationship with the alienated parent. Yet, determining unwarranted rejection is problematic due to its multiple determinants, including the behaviours and characteristics of the alienating parent, alienated parent and the child. This is compounded by the child’s age and developmental stage as well as their personality traits, and the extent to which the child internalises negative consequences of triangulation. This renders establishing the prevalence and long-term effects of parental alienation difficult…’

At para 170 the Judge considers the new CAFCASS assessment framework for private law cases. The assessment contains a section headed ‘Resources for assessing child refusal/assistance’ which in turn has a link to a section headed, ‘ Typical behaviours exhibited where alienation may be a factor ’. These include:

  • The child’s opinion of a parent is unjustifiably one sided, all good or all bad, idealises on parent and devalues the other.
  • Vilification of rejected parent can amount to a campaign against them.
  • Trivial, false, weak and/or irrational reasons to justify dislike or hatred.
  • Reactions and perceptions are unjustified or disproportionate to parent’s behaviours.
  • Talks openly and without prompting about the rejected parent’s perceived shortcomings.
  • Revises history to eliminate or diminish the positive memories of the previously beneficial experiences with the rejected parent. May report events that they could not possibly remember.
  • Extends dislike/hatred to extended family or rejected parent (rejection by association).
  • No guilt or ambivalence regarding their attitudes towards the rejected parent.
  • Speech about rejected parent appears scripted, it has an artificial quality, no conviction, uses adult language, has a rehearsed quality.
  • Claims to be fearful but is aggressive, confrontational, even belligerent.

What can lawyers to either stop cases going wrong or intervene positively when they do?

Unfortunately, it is my view that the ability of lawyers or the courts to have much positive impact on the more extreme examples of intractable dispute, is very limited. This is because these are not legal problems. They arise out of the psychological vulnerabilities of one or both of the parents.  Even if parents could be persuaded to go to family therapy or family mediation it is unlikely that many could afford to do this and no state agency can be compelled to pay. The court room is clearly a very unsuitable arena to try to deal with the often toxic emotional fall out from failed adult relationships.

However, there are elements to these proceedings that the lawyer can influence and the court can attempt to dictate, which may have a positive influence on the outcome – or at the very least reduce the time taken and the emotional and financial costs incurred. See further the judgment of Hedley J in re E (A Child) [2011] EWCH 3251 at paragraph 11 onwards and A (A Child) [2013] EWCA Civ 1104.

I suggest that the fundamental requirements are:

  • Careful analysis of the issues and the available options;
  • Which feeds into a realistic timetable, avoiding drift

Intractable contact disputes that go horribly wrong usually have dragged on over many years. This increases the child and the resident’s parent aversion to the whole process; they simply want it to end. Lawyers can help by trying to identify as soon as possible which of their cases are likely to turn into intractable disputes and then being clear sighted about the options which are realistic in their case. It is essential at the earliest possible stage, all agree a clear timetable for either achieving contact or recognizing that it is not achievable whilst the child remains with the resident parent. There will then need to be full and honest appraisal of the likely success if a child is removed from the resident parent – either into foster care or to care of non- resident parent.

Proper analysis of the available options and the impact of each on the child’s welfare requires knowledge and understanding about what is in reality available to a family; little point in considering ‘specialist family mediation’ for example, if there are no providers within a reasonable distance or no one can afford to pay for it.

The following considerations may help this process:

  • Clear analysis at the earliest stage as to the degree and nature of opposition to contact. How objective and reasonable is the opposition? How flexible are the parents prepared to be? How quickly did problems escalate? Warning bells will start to ring at an early stage and should not be ignored.
  • If the non-resident parent does not accept the objections raised by the resident parent, consider an early fact finding so that there is a clear understanding of potential problems. Courts are often reluctant to go down this route (see Re E, para 11), worried that parents may simply focus on allegations against each other rather than the welfare of the child. However, this risk needs to be considered against the problems that can be caused by allegations that are never confronted and which linger on throughout the proceedings, to the detriment of any resolution;
  • If a case shows signs of being intractable, judicial continuity is very desirable;
  • Robust enforcement of any contact orders made at an early stage – don’t let this drift, bring non-compliance straight back to court. Be clear about why it hasn’t worked – did the resident parent fail to encourage? Did the non-resident parent fail to comply, for e.g. with indirect contact?;
  • The non-resident parent should be prepared to make reparation for any behaviour that has contributed to the resident parent’s distrust – not every case involves an absent parent who is wholly without reproach;
  • Making timely decisions about when a guardian or expert evidence is required. If the resident parent for example refuses to accept the outcome of a finding of fact this is usually the time when it is abundantly clear more needs to be done;
  • Exploring if there is any possibility of any help via therapeutic intervention/specialist mediation and how this is to be funded, etc
  • If it becomes clear that contact is not achievable whilst the child is living with the resident parent, there must be proper analysis of the available options and the impact on the child’s welfare of each – for example, should the court be invited to make an order under section 37 of CA 1989 for an interim care order so that the child goes into foster care?

Dr Doughty’s recommendations (cited with approval by HHJ Bellamy in para 171 of his judgment in Re D above), following a review of the case law and literature about parental alienation are:

  • Courts will not allow the implacable hostility of one parent to deter them from making a contact order where the child’s welfare otherwise requires it. In such a case contact should only be refused where the court is satisfied that there is a serious risk of harm if contact were to be ordered.
  • In some very exceptional cases, where the non-resident parent’s behaviour cannot be criticised, the effect on the child of ongoing contact proceedings is such that the court will decide those proceedings should not continue.
  • Where allegations of parental alienation are made, the court will need to record a determination of the facts, or risk an unnecessary appeal.
  • There is no blanket solution, but outcomes ae more likely to meet the child’s needs where there is:
    • Early resolution of disputed facts about domestic violence.
    • Early intervention where alienation appears to be an issue

The need to consider findings of fact seriously has been endorsed by the President of the Family Division – note J (DV Facts) [2018] EWCA Civ 115 (06 February 2018)

The views of Sir James Munby

The former President of the Family Division delivered a talk to the Annual General Meeting / Conference of NACCC, Amersham 24 November 2018, entitled ‘Dealing with Parents’ Conflict and Unreasonable Behaviour’ where he commented:

What do I have in mind?

  • First, the court must decide whether the proceedings should be allowed to continue or whether the matter should be dealt with out of court, either
    • because the parents should be required to exercise their parental responsibility and resolve matters themselves: see T v S[2013] EWHC 2521 (Fam), [2014] Fam Law 1664, and, for an elaboration, my lecture, A Matter for the Parents? A Matter for the Judge? Thoughts on 30 years of the Children Act and the revival of the inherent jurisdiction, [2019] Fam Law (forthcoming); or
    • because the parents should be diverted into some form of N-CDR, for example, mediation, arbitration or whatever.
  • Secondly, the court must decide whether or not there needs to be a fact-finding hearing and, if so, give appropriate directions for a focused fact-finding hearing at the earliest possible opportunity.
  • Thirdly, and if the case is to remain in court without an immediate fact-finding hearing, the court must decide which ‘track’ the case should follow:
    • what I will call the ‘in and out’ track, where it is realistic to imagine that the case can be resolved at the First Hearing Dispute Resolution Appointment (FHDRA); or
    • what I will call the ‘ordinary’ track, where although it is not realistic to anticipate resolution at the FHDRA there is nothing to suggest that the case is or will become intractable; or
    • what might be called the ‘special’ track for the potentially more complex cases.

Finally, and assuming that the case is to proceed in court, two things are essential:

  • First, proper assistance, before and at the hearing, for unrepresented litigants.
  • Secondly, radical reform of the process at the hearing itself.

I take these in turn.

Proper assistance, before the hearing, for unrepresented litigants raises a fundamental issue of enormous practical importance. The simple reality, I fear, is that:

  • the guidance and other explanatory literature available for litigants in person is sadly inadequate;
  • the court forms are very far from user friendly; and
  • the Family Procedure Rules 2010 and associated materials are simply not fit for purpose and, from the point of view of the litigant in person, an obstacle to proper access to justice.

Conclusion

However, in my view, the fundamental issue will always remain; these are not legal problems. These cases are almost always a manifestation of the psychological vulnerabilities of one or both of the parents.

Lawyers and the courts have poorly designed and often ineffectual tools at their disposal to make much headway. But unless and until a more effective arena is available to tackle the problem of intractable contact disputes, we will have to do our imperfect best.

Further reading

Case Law

A case where shared residence was agreed after 10 year dispute – see Re J and K (Children: Private Law) [2014] EWHC 330 (Fam)

See Re C (A Child) [2018] EWHC 557 (Fam) –  Unsuccessful appeal to the High Court by a mother against a decision which transferred the residence of C, aged six, to her father, in light of the mother’s opposition to progressing C’s contact with her father. Permission to appeal was refused as being totally without merit.

Re A (Children) (Parental alienation) [2019] EWFC  –Failed transfer of residence after an expert underestimated the strength of the children’s existing attachment to their father.

Transfer of residence of child from mother to father – RH (Parental Alienation) [2019] EWHC 2723 (Fam) (03 October 2019)

Re S (Parental Alienation: Cult) [2020] EWCA Civ 568 – child ordered to live with father if mother continued to refused to give up her adherence to a ‘harmful and sinister’ cult.

Articles and Research

See this article from the Custody Minefield about how intractable contact disputes can go wrong or get worse.

Address from the President of the Family Division to Families Need Fathers, June 2018

Review of the law and practice around ‘parental alienation’ in May 2018 from Cardiff University for Cafcass Cymru. There is a very useful summary of the relevant case law in Appendix A. The report concludes at para 4.7:

There is a paucity of empirical research into parental alienation, and what exists is dominated by a few key authors. Hence, there is no definitive definition of parental alienation within the research literature. Generally, it has been accepted that parental alienation refers to the unwarranted rejection of the non-custodial parent and an alliance with the alienatingparent characterised by the child’s extreme negativity towards thealienated parent due to the deliberate or unintentional actions of the alienating parent so as to adversely affect the relationship with the alienated parent. Yet, determining unwarranted rejection is problematic due to its multiple determinants, including the behaviours and characteristics of the alienating parent, alienated parent and the child. This is compounded by the child’s age and developmental stage as well as their personality traits, and the extent to which the child internalises negative consequences of triangulation. This renders establishing the prevalence and long-term effects of parental alienation difficult.

With no clear accepted definition or agreement on prevalence, it is not surprising that there is variability in the extent of knowledge and acceptance of parental alienation across the legal and mental health professions. The research has however, provided some general agreement in the behaviours and strategies employed in parental alienation. This has led to the emergence of several measures and tests for parental alienation, although more research is needed before reliability and validity can be assured. Many of the emerging interventions focus upon psycho-educational approaches working with children and estranged parents, but more robust evaluation is needed to determine their effectiveness.

The Cafcass Child Impact Assessment Framework (CIAF) sets out how children may experience parental separation and how this can be understood and acted on in Cafcass. The framework brings together existing guidance and tools, along with a small number of new tools, into four guides which Cafcass private lawpractitioners can use to assess different case factors, including:

  • Domestic abuse where children have been harmed directly or indirectly, for example from the impact of coercive control.
  • Conflict which is harmful to the child such as a long-running court case or mutual hostility between parents which can become intolerable for the child.
  • Child refusal or resistance to spending time with one of their parents or carers which may be due to a range of justified reasons or could be an indicator of the harm caused when a child has been alienated by one parent against the other for no good reason.
  • Other forms of harmful parenting due to factors like substance misuse or severe mental health difficulties.

Resources and Links recommended by the Alienation Experience Blog

Useful analysis of case law from UKAP.ONE