Author Archives: Sarah Phillimore

We are not alone – every European country permits adoption without parental consent.

So we can see that England really is not alone in allowing adoption without parental consent – every country has some mechanism for doing so. What makes England unique, however, is the extent to which this mechanism is used.

We are grateful for this post by Claire Fenton-Glynn, author of ‘Adoption without consent’ which was presented to the European Parliament in July 2015. She was cited by the President of the Family Division in the case of Re N (Children) (Adoption: Jurisdiction) [2015].

Claire Fenton-Glynn is a Lecturer in Law at Cambridge University. Her research lies in the field of human rights and the protection of children. She has published on a wide range of issues including  inter-country adoption, parental child abduction, and international surrogacy, as well as the right of the child to identity, and child participation in family law proceedings. At the core of this research is the way in which private international law instruments interact with human rights norms, and the protection of children and youth in regional and international instruments.

Are we alone in Europe?

It is a popular myth, perpetuated even by the upper echelons of the English judiciary, that England is alone in Europe in permitting adoption without parental consent.

In Re D (a Child) [2014], Mostyn J states that only 3 out of 28 European Countries permits ‘forced adoption’, while Lady Hale in Down Lisburn Health and Social Services Trust v H [2006] suggested that:

The United Kingdom is unusual amongst members of the Council of Europe in permitting the total severance of family ties without parental consent. (Professor Triseliotis thought that only Portugal and perhaps one other European country allowed this.)

On the other hand, a 2015 report by the Council of Europe, stated that such adoptions are permitted in Andorra, Croatia, Cyprus, Estonia, Georgia, Germany, Hungary, Italy, Lithuania, Montenegro, the Netherlands, Norway, Poland, Portugal, Romania, Serbia, Slovenia, Sweden, Switzerland, and Turkey. However, it maintained that such adoptions were not possible in France, Greece, Luxembourg and Spain.

As such, there appears to be considerable confusion concerning the extent to which adoption without parental consent – pejoratively named “forced adoption” by some – is permitted throughout Europe.

 

Every country in Europe permits ‘forced adoption’

As this post will make clear, despite assertions to the contrary, EVERY country in Europe has a mechanism for permitting adoption without parental consent, in certain circumstances. (“Europe” can be defined in a number of different ways, but for these purposes, I mean all 47 Member States of the Council of Europe).

Three different mechanisms – abandonment, parental misconduct, child’s welfare

When looking at ways in which an adoption order can be made without parental consent, I have identified three different mechanisms that are used throughout Europe:

  • Where parental consent is not necessary because of abandonment or lack of interest in the child;
  • Where consent is not necessary because of parental misconduct or deprivation of parental rights;
  • Where consent is dispensed with because the parents have refused consent unjustifiably, or because it is in the child’s best interests.

Some States use a combination of these approaches, allowing consent to be dispensed with in a number of different ways.

 

Child has been abandoned

One mechanism for permitting adoption without parental consent is where a child who has been deemed abandoned by their parents. The precise grounds for not requiring consent in this area vary significantly, including:

  • abandonment (Albania, Cyprus, Italy);
  • not contacting the child (Hungary, Malta);
  • not showing interest (Portugal);
  • being manifestly disinterested (France);
  • not participating in his or her upbringing (Azerbaijan, Czech Republic);
  • parents’ whereabouts or residence is unknown (Austria, Estonia, Hungary, Montenegro, Slovenia, Switzerland).

Different time limits are also placed on authorities before they can dispense with consent for these reasons, ranging from:

  • three months (Montenegro, Portugal);
  • six months (Austria, Azerbaijan, Czech Republic, Hungary, Moldova, Montenegro, Ukraine);
  • twelve months (Albania, Andorra, Armenia, France, Hungary, Luxembourg, Slovenia);
  • eighteen months (Malta);
  • “an extended period of time” (Estonia, Switzerland).

 

Parental misconduct

Parental consent is not necessary because parents have been deprived of parental rights or on the grounds of parental misconduct. The most common way in which consent is dispensed with is where the parents have been deprived of parental rights.

This is the case in:
• Armenia;
• Belgium;
• Croatia;
• Denmark;
• Estonia;
• Greece;
• Latvia;
• Liechtenstein;
• Lithuania;
• Luxembourg;
• Moldova;
• Monaco;
• Montenegro;
• Poland;
• Serbia;
• Slovakia;
• Slovenia;
• Spain;
• Russia.

Other countries do not require deprivation of parental rights for consent to be dispensed with, but instead focus on the specific conduct of the parents. This focus varies:

  • neglect or persistent mistreatment (Cyprus, Malta);
  • abuse of parental authority (Netherlands);
  • risk of compromising the child’s health or morals (France);
  • persistently grossly violating parental duties (Germany);
  • not caring for the child to any meaningful degree (Switzerland).

In some countries, the deprivation of rights must have lasted for a set period of time before an adoption can be granted, for example:

  • where the parents have been deprived of parental rights for longer than six months six months (Russia);
  • where the parents have been deprived of parental rights for a period of one year (Azerbaijan, Georgia, Slovenia);

Dispensing with parental consent by overriding an unjustified refusal, or in the child’s best interests

Another common mechanism for allowing adoption without consent is where the parents’ refusal is overridden in certain circumstances:

  • if the court adjudges the consent to be “unreasonably” withheld (Cyprus, Malta);
  •  “refusal without justification” (Austria, Liechtenstein);
  • if the refusal is “abusive”, (France) or consent is “abusively denied” (Greece)

However, in Romania, even if parents are deprived of parental rights, their consent is still needed.

 

A shift to a process based on the welfare of the child

On the other hand, some jurisdictions have shifted to a process that is more explicitly based on the welfare of the child. This position is in line with the requirement under the UN Convention on the Rights of the Child. Article 21 of this Convention, which deals with adoption, is the only article under which the child’s rights must be the paramount, rather than merely the primary, consideration.

Such legislation can be seen in the following jurisdictions:

  • if the parents’ refusal of consent is clearly contradictory to the child’s welfare (Poland);
  • if the refusal is not sufficiently justified taking into account the best interests of the child (Finland);
  • if it is of decisive importance to the welfare of the child (Denmark);
  • if it is in the best interests of the child (Malta, England and Wales).

 

But what makes us unique is the extent to which we rely on ‘forced adoption’.

What does all this mean?

So we can see that England really is not alone in allowing adoption without parental consent – every country has some mechanism for doing so. What makes England unique, however, is the extent to which this mechanism is used.

Governmental statistics indicate that of the child placed for adoption in England in the year ending March 2014, 4,870 were completed without parental consent, with only 130 the result of voluntary placements on the part of the parents. This constituted 96% of all adoptions. (Department for Education, “Statistics: looked-after children” (30 September 2014))

Statistics in this area are difficult to come by from other jurisdictions, and in particular statistics disaggregated in this way are not easily accessible. Research indicates that the Netherlands only have about 20 adoptions per year in total (though it is unclear whether these are with or without parental consent), while France generally has around 700, however, 600 of these are as a result of an anonymous birth (“accouchement sous X”).

 

So what is happening to the children in other countries? And why are outcomes for children in care in the UK so bad?

So the question we really should be asking is: what is happening to all the children in these countries who would be placed in adoption in the England? Are they staying with their parents, with support from the authorities? Or are they placed in another form of alternative care? If so, what are the outcomes for this?

One of the difficulties we face in England is that the outcomes for children in state care are dire. In 2014, the Department of Education noted that looked after children continue to have poorer educational outcomes than other children, and 66.6% have special educational needs. In the year prior to March 2014, 5.2% of looked after children from 10-17 had been convicted or subject to a final warning or reprimand, while 3.5% of all looked after children had a substance misuse problem. Of children aged 16 and 17, the rate of conviction, final warning or reprimand raised to 10%, and the rate of substance abuse 10.8%. Statistics also showed that looked after children were also twice as likely to have been excluded from school, and around only 50.4% of looked after children had emotional and behavioural health that was considered “normal”, with 12.8% more “borderline”, and 36.7% “cause for concern”.

We can thus see that there is a tension between leaving children in public care, where the outcomes for children are simply unacceptable, and the placement of children for adoption without parental consent. There is no doubt that many children do not thrive in public care in England, and thus leaving them in this environment is detrimental to their welfare. The response has been to place more children in adoption, rather than to address the reasons why public care is so harmful, and seek better alternatives. In this respect, we need to look to other jurisdictions, and learn from each other. There are always going to be children who need to be separated from their families – the question is how best to provide long-term care for them that gives them stability, security, and all of life’s chances. Currently, we are not achieving this.

 

Further reading

Information on comparative systems for adoption without consent can be found in the following report for the European Parliament

Further comparative information concerning other areas of adoption law can be found in: Claire Fenton-Glynn, Children’s Rights in Intercountry Adoption: A European Perspective. 

An open letter to Ian Josephs

Is there anyway we can bridge this gulf between us? Or are we simply doomed to shout at each other from our opposite sides of the gulf, whilst the parents and children continue to slide into it?

This post is sparked by comments on a recent post Helping Parents Leave the Jurisdiction where I set out my concerns about the activities of John Hemming, Christopher Booker and Ian Josephs.

Sarah Phillimore

 

From Ian Josephs

On 5th August 2015 at 1.51pm

Mother on the run
Katie Lee Jones, 24 year old British mother and her children captured in West Cork.
https://youtu.be/nI6GJtMdqEo
I got sent this video today and it speaks for itself !
Sarah, the mother you describe who beats and starves her children has indeed committed a crime and probably the children should be removed.

Screaming and shouting on the other hand can be a way of life in some countries like Italy but in any case the children can still love their parents and suffer far more by adoption and separation from everyone they know than by staying where they are.

Many cases that come my way concern women who have found new non violent non shouting partners because of the risk that history might repeat itself and forced adoption in those cases is indeed a crime.

Lastly I have never once been reproached by a parent for giving bad advice, but I do have many letters of thanks from parents who folowed my” infamous” golden rules and got their kids back. Quite a few are on my site.

I do not believe in punishment without crime and before you say taking babies is not punishing anybody just tell that to non criminal mothers who have had their babies snatched at birth to be given to complete strangers for life. Strangers who can never love like a real mother; but then love is a dirty word rarely used in social service circles where they prefer to talk of new adoptive parents “bonding” with other peoples children; bonding is what the players do in football teams like Arsenal and Chelsea but they rarely “love” each other !

 

From Sam

Sam August 6, 2015 at 9:27 pm
I speak as a parent who has suffered from domestic violence. The man who abused me saw his mother abused, in fact she readily admitted to being thrown down the stairs, a number of times and having all her teeth knocked out. Her own mother was an alcoholic. My ex’s father was a drinker, I cannot say he was an alcoholic for certain but certainly the signs are all there. The next man she lived with who beat her was also a drinker, once again I didn’t meet him so cannot say he was an alcoholic, but he had the personality and behaviour. My ex’s brother had another addiction and a similar personality.

I and of course my children lived with a shouter, though it felt more like orders and it is harmful. I tried to get away before but was greatly failed by the authorities.

With respect Mr Josephs, it is rare to get out of one dysfunctional relationship without falling back straight into another one and it goes on for generations. The way to break the circle is self awareness. It is vitally important for children, unless they are to repeat their families dysfunction for the parents to become aware and work on themselves with whatever help they can find. That may be the Freedom Programme, counselling or an voluntary sector organisation such as Al Anon Family Groups. The mother needs to get skills to stop her falling down the same hole again.Where the courts fail is insisting on the 2-3 years of therapy that doesn’t actually exist.

You said you had a racehorse. He or she would have been very carefully bred , through many generations to maximise speed and minimise the faults of their sire or dam. They would have received the best of care throughout their formative years in order to grow into their potential. Hopefully at the end of their racing career you consider their options, whether to put them out to grass or stud if applicable or have them rehabilitated as a leisure horse. If so much care and attention is paid to a horse, and I am a horse lover so would never say mere horse, should it also not be applicable to children.

I did watch the You Tube clip and I saw a vulnerable young woman, that concerned me. I was also worried when I worked alongside a young woman in a voluntary project, who had already had three children removed and had got pregnant for the forth time ,it was a relationship of a few months, the father was an alcoholic. She thought everything would be all right and would not contact a solicitor even though I urged her to.

I do understand that the system is broken, if you read my other posts I have had plenty to moan about. I also think outcomes from care are appalling . I just wish there was more middle ground, that you would swing some of your resources to working here in the UK . Perhaps you would say you are already. There are partnership projects that are working in other countries and I believe there have to be more here, complete with making Children’s Services as more accountable through recording etc.

 

From Me – will Ian Josephs use his time, energy and money to do something constructive?

Sarah Phillimore Post author August 7, 2015 at 7:40 am

A very constructive and helpful comment Sam.

You are right about the loss of the middle ground. I have been saying for years that my frustration with the activities of Hemming, Josephs et al is not simply because they are wrong in most of what they say, but that they divert the energies and attention of all of us into dealing with their wrongness, instead of focusing on what we could do to make it right.

So I will put it out there – Mr Josephs. You clearly have a lot of time, energy, commitment and most importantly money.

Would you use any of those positive attributes to help projects that might actually achieve some necessary change for the better? Would you, for example support the Transparency Project with a small monthly donation so we can continue our work in pressing for greater understanding and accountability?

Would you meet with Sam and discuss with her a project for mentoring parents or peer support? I can join you and discuss what I learned in Finland about co-working with parents and children.

Is there anyway we can bridge this gulf between us? Or are we simply doomed to shout at each other from our opposite sides of the gulf, whilst the parents and children continue to slide into it?

 

A Social Worker’s perspective on the judgment in W (A child)

This is a post by Kate Wells a retired social worker, who sets out her views about the case of W (A Child) [2015] – an extra-ordinary judgment, both in its decision to refuse to make an adoption order and return W to her father’s care and also for the language used by the Judge to criticise the decision making of Judges, social workers AND the guardian. There is now an appeal lodged against this judgment and we will await further news. 

I hope you will see that I am not defending the LA social workers at all, and the Guardian was clearly lazy and incompetent. I think the Judge’s criticisms of the psychobabble were justified and yes it does underline the need to use plain English, both in writing reports and giving oral evidence.

However I am really upset that this little girl is going to be moved from the prospective adopters and am very frustrated that so called experts can honestly believe that to subject a child to 5 moves before her 3rd birthday is acting in the child’s best interests.

 

Dealing with the threshold criteria

The overarching concerns about the children’s safety and well being resulting from their mother’s chronic mental ill-health remained when the case came before the District Judge. Both parents accepted that the threshold criteria as set out in s 31 of the Children Act (CA) 1989 had been met which would allow the court to make care orders or supervision orders under the CA. The DJ had failed to set down the threshold criteria on which he was basing his decisions as to the children’s welfare. The learned judge said under the heading “Threshold” that:

The mother accepts the criteria are met. The father has made concessions also the majority of these [sic] and that the children have suffered emotional harm as a result of the parents’ relationship and the mother’s mental health and alcohol issues and his lack of awareness or insight of the stress he was under in December 2012. What he does not accept is the allegations in respect of the ‘toothbrush’ incident with [X] in November 2012 and the injury to [Z]’s ear in December 2012.
Insofar as the toothbrush incident is concerned, there is no medical evidence to assist. We have [X]’s account of how this came about, but true to say that she had in the past apparently said things had happened to her which were not in fact true. I am unable to find on the evidence that the father ‘shoved’ the toothbrush as alleged.
As to the injury to [Z]’s ear, there is no reliable medical evidence and one sees that [Z]’s evidence do in fact differ on occasions. I am unable to find evidence to support this allegation.
I am satisfied however otherwise the threshold is crossed.”
There are no details of that “otherwise”. Fortunately in reaching a decision as to W’s future welfare and placement I am not directly concerned with the threshold at the time the care and placement orders were made; indeed those orders are no longer extant as a result of the decision of the Court of Appeal. Importantly, in respect of W, no findings were sought or made regarding the baby falling off the sofa.

It would be interesting to know exactly what grounds the LA put forward to prove significant harm. Is there any way that this can be sought? I also wondered why there were no findings in relation to the baby falling from the sofa, at aged under 4 weeks, although the baby had been examined at hospital and no serious injury found.

 

Criticisms of the SW Evidence

The District Judge was very critical of the social worker’s (Ms Hendry) evidence calling it “unconvincing” and “totally focussed on one aspect namely the ability of the father to change.” Despite advocating the immediate removal of the three older children based on a decision reached at an unrecorded meeting in May 2013 between social worker, managers and solicitors, Ms Hendry had not assessed the effect on each child of such a removal and was unable to address it in her evidence. The district judge went further and said that she should be replaced as the allocated social worker for the family.

Given the DJ’s criticism of the social worker’s unconvincing evidence, in an application to remove all 4 children from the care of the father, it seems to me all the more curious that the DJ made a Care and Placement Order in respect of W. Incidentally is it within the Judge’s remit to order that a social worker be replaced – suppose it is! Is this a common occurrence?

18. The parenting assessment carried out by Ms Hendry in October 2012, as I alluded to above, formed the basis of the local authority’s case and continued to inform it even after her oral evidence had not been accepted by the court. The evidence of the social workers now allocated to this case continued to focus on their perception of the father’s inability to change or accept the need for change (although the circuit judge had given him permission to oppose the adoption of W precisely because he had changed his circumstances). Despite the fact that there were no findings of physical abuse these allegations continued to be repeated by the local authority and, I repeat, their concentration on “the need for the father to change” remained a constant part of the local authority’s case and the basis for their opposition to his attempts to have W returned to his care. In September 2013 the court found that the father provided “very good care” and was satisfied that he had separated from the mother and “had reached a turning point recognising that he must concentrate on the care of the children to the exclusion of his relationship [with the mother]. I am satisfied that he is intending to address his difficulties and has started to do this by engaging in counselling. I am satisfied that the children are for the main part doing well at school. I am satisfied that they have significant attachment to their father.

It seems clear that Ms Hendry was well out of her depth in proving that these 4 children were being significantly harmed. The substitute social workers must have felt very anxious and intimidated, but did themselves no favours by repeating the same arguments i.e. the need for the father to change, and repeated allegations of physical abuse, which had been disregarded by the DJ. It could be however that the DJ’s judgement was also “erroneous” in this respect, but that doesn’t excuse the LA from persisting along that track.

However there is no mention of the LA lawyer and why an application to remove 4 children from their parents was not scrutinised to ensure that the evidence met the standard required to prove significant harm in the balance of probabilities.

 

What is the Impact on W of being moved 5 times in 3 years?

41. Dr Willemsen was clear when I asked him that he had thought hard about this child and what was best for her throughout her life; he said when he was preparing the report in the first instance he thought “this child belongs with her father, that was the starting point, then I became very worried about child and good attachments and at that time had the legal evidence as it was she should stay. This verged [sic] me towards thinking I am really worried about this child moving. The additional evidence there is now is a father by going to the Court of Appeal says ‘I want to be a good father to my child’ and further evidence that [he] understands some of [her] needs. So I think it is clear to say that it has changed. I think most important argument knowing what Court of Appeal decided what are you going to say to child when she is 12 or 13 or 14 what are you going to tell her and say? What are you going to tell her? This is a miscarriage of justice. Much will depend on how will she take it. This argument is the one that went through my mind if she comes to ask”. When asked on balance what he thought he said, unequivocally, “I think she returns to her father.”

Here we have a clinical psychologist talking of “good attachments” – good, as opposed to “bad”……….grrrh. There are references in the judgement to “strong” attachments – I MUST make those notes on attachment theory. However I am really concerned that Dr W can believe that this child should be moved back to her father. The wrong decision was almost certainly made by the DJ but this child was moved 3 times before moving to her adoptive placement, where she has lived for 16 months, and Dr W is recommending a 5th move for a child not yet 3 years old. Does he not realise that the first 3 years of a child’s life are the most important years of all, and lay down the foundation for the remainder of her life, be that positive or negative.

 
All this talk of what W is going to think when she is 12/13/14 and asks why she was adopted and not the other 3 children, is pure conjecture, nothing more, mothing less and it seems to have totally influenced the Judge. There is absolutely no way of knowing what W might think about the reasons that she was adopted. It is just as likely that she will be glad that she was adopted especially if she has had a happy and untroubled childhood and a family who will continue to support her throughout their lifetime.

 
Balanced against this child being subjected to 5 moves before her 3rd birthday it is, as far as I’m concerned a “no brainer” (much as I dislike that phrase) W was placed with her adoptive family at the age of approx. 1.5 years and will be 3 years old in Nov this year. We know nothing of the early weeks and months of W’s placement with the prospective adopters, and the difficulties of settling a child who had 3 moves in 18 months.

 
At some point in the judgement, the Judge acknowledges the trauma for the prospective adopters but comments that their failure to re-assure the court of their willingness to facilitate W’s move back to her father as evidence of them not putting the needs of the child before their own. I think this comment was grossly unfair and unnecessary. It was also unfair to put the adopters on the spot by asking how they would explain to W that she was adopted whilst her 3 siblings remained in the care of their father, and again the Judge was critical of their inability to provide a satisfactory response. Prospective adopters are all told that the child must know that they are adopted right from the word GO – and it is usually done by means of a life story book which should contain pictures of the birth parents/siblings, other members of their extended family, foster carers etc. Photographs can be added as the child grows. Birth mothers are usually referred to as “tummy mummies” and all explanation obviously have to be age appropriate. However to expect adopters to be able to “fast forward the tape” to answer the possible questions of an older child is simply unfair, as so much will depend on the child and the nature of any questions, if indeed any are forthcoming. Many adopted children are not interested in their background although this tends to change once they are adult and especially after giving birth to their own child. This is a key time for searching for birth mothers, though many adoptees wait until the adoptive parents have died before searching.

 

The wishes and feelings of W’s siblings

42. Mark Hatter is an independent social worker with considerable experience of social work and, in particular, with working with adolescents when adoptive placements have failed and broken down. He had seen the father and the three children at home and had made very positive observations of their father with X, Y and Z. He too had felt able to work with the father, was impressed by the children and found their father to be responsive to them and managing the family in what is a very cramped environment. Mr Hatter found the family as a whole had a strong awareness of W and that her return was something that X wanted, which may lead to a reduction in her anxiety. His recommendation altered when he gave oral evidence to the court when asked he said “[The recommendation] is still extremely balanced but in light of those changes I would have to support the return of W [to her family].” The changes he referred to were the evidence of Dr Willemsen and the decision of the Court of Appeal.

What I wonder is a “strong awareness” – yes the children know they have a little sister but they haven’t seen her for over 18 months, though given their ages, they will remember her of course. On what basis does Mr H make his assertion that W’s return to the family reduce X’s anxiety? It is small wonder that X is anxious given her family background and the fact that her mother is seriously mentally ill, and she therefore is not able to have a good relationship with her, something that is very important to young women on the brink of adolescence. There is no mention of a supportive granny or aunt who may be able to offer X the support she will need as she reaches puberty. I think it naïve in the extreme that Mr H believes that having W back in the family will alleviate X’s anxiety – it could well increase it, especially as W is going to be very confused and upset at the move, and this distress will be played out in the family home, in my view adversely affecting all 3 of the other children. The father will of necessity need to divert his attention to W and so the other children could be disadvantaged as a result.
So much talk of “finely balanced” ……….

 

Matter is finely balanced, recommendations vague

43. Mr Hatter observed that he had not had long to consider those changes and he had not heard the evidence of Dr Willemsen, but as much of his opinion was based on the attachment of W to the adopters and as he is not a psychologist and he would rely on Dr Willemsen and as his recommendation has changed he would acknowledge and respect that change. He voiced the same concerns for W going up in an adoptive placement with the background of this case and said “I struggle with what W’s journey would now be in terms of being an adoptive child when backdrop to the case appears to be care and placement orders now set aside and I struggle to understand how she would cope with knowing that at some stage whilst also knowing has three siblings remaining in the care of her father and on balance I believe that with very clear support to the father that with the father fully engaging with that support that the potential harm to W of being adopted in the present circumstances versus potential of remaining within her birth family outweigh [adoption]and make me wish to change recommendation. Though I again stress it is very finely balanced in my professional opinion and I would still hold concerns however now faced with other concerns for W if she remained.”

Seems to me that Mr H has bowed to the “superior knowledge” of the clinical psychologist and does not have the courage of his convictions. Any experienced social worker should know that to move a child 5 times in her first 3 years of life is NOT acting in her best interests. You don’t need to be a psychologist to know this, and of course Dr W doesn’t seem to know that either.

44. He had based his original recommendations on matters that were relied on by the local authority as I set out in paragraph 32 above; most of which are without foundation, as can be seen from the evidence of Dr Willemsen. Mr Hatter said that he found the father to be “completely open to working with me.” He was also very concerned about overcrowding; an issue which cannot weigh heavily with this court as it affects so many low-income families and cannot be the basis for the permanent removal of children from their families. Mr Hatter urged the local authority to support an urgent move for the family to larger accommodation. I am assured by counsel on behalf of the local authority that such support would be forthcoming. He said that bearing in mind the cramped surroundings he was most impressed by the children, their interaction and the father’s management of them. He praised the children’s mother for the position she had taken which he described as “good”. He spoke of X, who as the eldest and a girl had the response of wanting to help and voiced the, wholly reasonable, opinion that she could do with some individual support, perhaps from a mentor, and “time out”.

What do these vague recommendations actually mean? Yes I agree X needs support, but where is this “mentor” going to come from – the LA won’t be in the business of paying anyone to perform this mentoring duty, and what is meant by “time out” ??? Hmm the Judge doesn’t seem to be concerned with vague comments that don’t mean anything.

45. As to the father seeking help and support when and if necessary Mr Hatter emphasised that it was a two-way street and that the father had to feel that he and the local authority were working from the same sheet. He said that from his observation the father was not a man seeking victory as his empathy towards the adopters was real. Moreover the father acknowledged he’d need support and would appreciate support from the local authority. Mr Hatter felt that the biggest remaining upset within the family was that W was missing and they saw themselves as disjointed; although he still had concerns “the balance moved to W going home.”

Mr H “feels” – the court shouldn’t be concerned with “feelings” surely, they should be concerned with evidence. This is a family that have all suffered in their different ways, the mother because of her mental health issues, the father attempting to save the marriage and the stresses and strains of doing that, alongside being the primary carer for 4 children, one just a few weeks old. And the children have witnessed their mother in irrational and angry states and attacking their father on at least one occasion, and the turmoil and distress this must have caused them, and now the mother is no longer in the family home – and Mr H believes that the “biggest remaining upset” is that the family “see themselves as disjointed” – I’m sure they do, because they are, but not necessarily because W was missing.

 

What will happen in the future?

46. Mr Hatter has had experience of teenage adoption breakdown both as an independent social worker and a social work manager and he anticipated difficulties for W in the future if she finds out the circumstances of her adoption. He considered that she would find out and would be upset and feel anger about the adoptive placement.

Ah I see Mr H can see into the future! I am simply astonished at this comment and even more astonished that it has been accepted by the Judge.

48. Mr Hatter had pointed out in his report at paragraph 76 that should W remain in the adoptive placement she would be likely to want to have direct contact with her parents and siblings in the future, particularly as her siblings remained living with their father. “It will be relatively easy once W has unsupervised access to the internet and Facebook for her to make contact with her family should she wish to do so which will be in turn a challenge for her adoptive parents to deal with and to manage. I am concerned that this situation may be compounded if there is the potential of the family moving abroad during W’s minority.” He went on to say, in his oral evidence, that it was a valid point to add to the likelihood of breakdown the fact that the As are part of these proceedings and voicing resistance to her going home. He saw the difficulty as being that W was securely attached to her current carers but that the change was a positive one of being back with her birth family; there would be losses but also gains. In the longer term, if the local authority works with the children’s father, there is a lot more to be gained by going home.

Given Mr. H’s comments about the internet, this could well be true for any child who has been adopted and it is a valid issue, but if this is going to weigh so heavily in deciding a child’s future then it surely will only be a matter of time before it will mean an end to a child’s future being secured by way of adoption or any other form of permanent care. And again we see Mr. H’s capacity to see into the future, evidenced in his comments about the possibility of the prospective adopters moving abroad during W’s minority! Astonishing!

 
As you can see I am very frustrated about Mr. H’s “expertise” but that changes to anger when he assert that “a breakdown of the adoptive placement is likely because the As are part of the proceedings and voicing resistance to her going home.” Dear god, of course they are resistant to her going home. Mr H claims to have an expertise in adoption and adoptive placements, and yet he can make such a ridiculous comment. They would be very strange adopters if they would happily agree that this child, who they have loved and nurtured for 16 months and who they envisaged being a part of their family for ever, should be returned home to the care of her father.

 
Maybe Mr H spelled out in details just how exactly “there is a lot more to be gained by W going home.” Or then again maybe he didn’t, but he’s impressed the Judge, so that’s all that matters.

 

Psychobabble and defensiveness

47. I heard the oral evidence of Lucy Wilkinson the current social worker. She had not filed a statement but her practice manager Ms Alsop had done so which was largely based on Ms Wilkinson’s interaction with the family; I am still unclear as to why the evidence was produced in this way and, although Ms Wilkinson denied it, it seems the likely explanation is that she was not considered to have been a “success” as a witness in the previous hearing in December 2014 when permission was given to the father to oppose the adoption.
48. The statement of Ms Alsop, in addition to containing evidence which could only be attested to by Ms Wilkinson repeated outdated evidence (of Gail Miller) and what can only be described as psychobabble about the effect on the father’s parenting of his own childhood experiences. In short it voiced opinions which neither Ms Wilkinson nor Ms Alsop are qualified to make. I give two examples only; at paragraph 4.6 statement of Ms Alsop dated 2nd March 2015 it reads”[the father] is unable to have a dialogue with the children about [W] as it is too painful to him. It is my opinion that due to [the father]’s own experience, this has had an impact on his emotional intelligence and that is so poor that he may not be able to put himself in his children’s position and think from their perspective. His own adverse childhood experiences may have led him to develop maladaptive strategies in order to protect himself from his own experiences and his therefore not able to acknowledge the difficult experiences of his children and the difficult experiences they have suffered.” Not only is this evidence entirely at odds with the evidence of the qualified clinical psychologist Dr Willemsen, it is not supported by any evidence from the school or the observations of independent observers such as Mr Hatter; both in the care proceedings and in the adoption application the local authority has given insufficient weight

It is very odd in my view, and totally unacceptable that the social worker with case responsibility does not file a statement, but this is done by her team manager and I am sure the Judge is right in thinking that Ms Wilkinson did not feel she was capable of making a statement and being cross examined. Maybe the Ms W was a newly qualified worker. But Ms Alsop’s noble attempt to step in fell on stoney ground, and as much as I dislike the term “psychobabble” as a derogatory term, I have to agree that her comments made little sense.

 
I have tried to de-gobbledygook the comments made by Ms A: – The father has had such a traumatic childhood that he can’t really talk to the children on their level, and he has tried to shut out the pain of the past, and this prevents him from understanding the distress the children are suffering. Best I can do! However this is opinion not evidence and it doesn’t make much sense even when phrased in simple language

Not only is this evidence entirely at odds with the evidence of the qualified clinical psychologist Dr Willemsen, it is not supported by any evidence from the school or the observations of independent observers such as Mr Hatter; both in the care proceedings and in the adoption application the local authority has given insufficient weight to the observations of professionals working with the family apparently where that evidence does not accord with its case. The wholly positive and unchallenged evidence regarding the parenting skills of the father of the Family Support Worker, the health visitor and the school welfare officer is barely touched on.

Poor Ms A – the team manager who stepped in to show the social worker how it’s done – maybe she should remember that when you’re in a hole, stop digging!

In paragraph 6.8 in an attempt to dismiss the counselling the father has undertaken and to build their case against him they say “I am aware that the father has undergone counselling at the R clinic but it is my opinion that the trauma C has suffered in his own childhood is still unresolved and this is impacting on his ability to offer attuned parenting to the children. Research strongly suggests that [reference to part of a sentence from a publication identified only as Cozolino 2002, The neuroscience of psychotherapy]. I would question whether the father uses disassociation as a defence against the trauma he has suffered, as a coping strategy to stop thoughts and memories causing anxiety.” This opinion is used to justify comments about his alleged inability to cope with and provide for the individual needs of each of his three children. Again there is no evidence to support these assertions either from the school or in the assessments of Dr Willemsen and Mr Hatter, whose evidence I prefer. The continued reliance on the report of Ms Miller (which is clearly out of date) alone raises questions as the validity and substance of any view expressed by the social workers but the continued references to the father not being able to put into practice what he has learnt after engaging in parenting work at paragraph 6.20 are almost risible when considered against the evidence of Dr Willemsen and Mr Hatter.

Churlish of Ms A to disregard the counselling the father has undertaken. Ok there are no quick fixes and 11 months (or even 11 years) are sometimes not enough to alleviate the long term difficulties associated with a traumatic childhood, as these can persist through the lifespan, often in the form of PTSD, but credit should be given to the father for seeking help via counselling. MsA is very hung up on the notion of the father “using disassociation as a defence against the trauma he has suffered” expressed previously as “adopting maladaptive strategies………

To describe the social workers’ written and oral evidence as merely grudging when it comes to the care and security the father has given his children is too generous; Ms Wilkinson was certainly both grudging and defensive when giving oral evidence; their unprofessional attempts at case building are reprehensible. There is no evidence that they have moved on from the social work assessment carried out in October 2012 by the then social worker Ms Hendry who was criticised by the district judge.

I’ve stopped feeling sorry for Ms W – there is absolutely no excuse to be grudging and defensive in written and oral evidence and demonstrates a complete lack of even a modicum of professional wisdom and integrity. I have come across this attitude when working as a Guardian (before guardians were employed by CAFCASS) and we worked on reciprocal arrangements with neighbouring LAs, and when I was working independently. However I still think it was regrettable that the DJ made the serious error in the first place and this must have influenced the LA social workers that they had a good case. Again where was the LA lawyer in all this………….?

 

Guardian’s evidence – beyond shocking

At the hearing before the district judge in September 2013 the guardian produced a brief report that was scant of any real analysis and which failed to set out the reasons for and against permanent placement outside her family. Re B-S, though heard on 22nd July 2013, was handed down on 17th September 2013 (2 days prior to the reserved written judgment being handed down the hearing having taken place earlier in September), as Lord Justice McFarlane said at [22] of his Court of Appeal judgment in this case “Although the district judge may not have had any knowledge of this court’s decision in Re: B-S, which was only handed down some 2 days prior to the district judge’s judgment, Miss Branigan submits that the district judge should have been fully aware of the Court of Appeal decisions given some two or three months earlier upon which much of the judgment in Re: B-S was based (Re R (Children) [2013] EWCA Civ 1018; Re G [2013] EWCA Civ 965; Re S (A Child) [2013] EWCA Civ 926).” The guardian should have been aware of the decisions which preceded B-S at the time of the hearing in September 2013.
The lack of any real child-centred analysis within these proceedings is inexcusable, the report he filed on the 27th April 2015 contained very little analysis (in barely two pages from the foot of page 7 to the foot of page 8 setting out what he considered to be the “essential balance”) and certainly not the table setting out the advantages and disadvantages to W of adoption, which he was advocating, that the court could expect from the child’s guardian. Moreover Mr Madge explicitly criticised the father for pursuing multiple applications and appeals, which he described as at sixes and sevens with each other and blamed him for causing significant delay for W. He clearly accepted the local authority’s view of the children’s father describing the father as a thoughtful man whose reflection of W’s situation was “systemically closed”. I do not know to what he referred as it is a jargonistic phrase empty of meaning, unaccompanied by an explanation.

Shocking, clearly hopelessly incompetent Guardian – “at sixes and sevens with each other” WTF! And “systemically closed” – I have absolutely no idea what this means and I doubt he did either. “Shut out” is a guess!

I expressly asked Mr Madge to provide the court with a balanced analysis at the outset of the hearing and he did so, finally, on the 21st May 2015. His counsel complained on his behalf that the court had prejudged the issue; in fact it was he who had done so. He did not attend court for counsels’ final submissions. The import of his last report was to swing behind the expert opinion but he was rancorous about it and I found his analysis lacking both depth and balance, bereft of objectivity and of little or no assistance.

Beyond shocking – sounds like he just didn’t care about these children or their future, and having been criticised for aligning himself with the view of the LA, he grudgingly aligned himself with the expert opinion. I imagine this was to prevent any further criticism from the Judge, rather than anything else.

 

Conclusions

Well Sarah this took rather longer than I expected and I am beyond burning the midnight oil. I hope you will see that I am not defending the LA social workers at all, and the Guardian was clearly lazy and incompetent. I think the Judge’s criticisms of the psychobabble were justified and yes it does underline the need to use plain English, both in writing reports and giving oral evidence.

However I am really upset that this little girl is going to be moved from the prospective adopters and am very frustrated that so called experts can honestly believe that to subject a child to 5 moves before her 3rd birthday is acting in the child’s best interests. I think far too much weight was given to what she might think about her adoptive placement when she is old enough to understand – and how this influenced the Judge. At one stage he mentioned that W will have some residual memory of her father and siblings at the last contact, which must have been some 18 months ago. I absolutely disagree and in the child’s sense of time, at her age, she can’t possibly have this kind of recall.

 
There is not a great deal of criticism from the Judge about the DJ’s judgement, other than to say it was “erroneous” (something of an under statement) and again no criticism of the LA lawyer. What IS it with these lawyers – do they not understand the need to ensure that there is sufficient evidence for the LA to prove their case. That surely is a fundamental task of such a lawyer.

 
The other issue is the mother of the children, and little is said about her in the judgement. I think I read father has a RO on the 3 children. I do wonder if the LA were critical of the fact that the parents were obviously having a sexual relationship which resulted in the birth of W. This wasn’t made explicit, but I wonder if it was somewhere in their thinking, as there were comments that the father was putting his relationship with the mother before the needs of the children.

 
I also wonder about the mother’s mental health. I note that she has a diagnosis of recurrent depressive disorder with Emotionally Unstable PD, but I wonder if there is also a psychotic element to her mental illness, as some of the descriptions of her behaviour would suggest this could be the case. She has also been sectioned under the Mental Health Act on more than one occasion I think and it’s very unusual for the use of a Section in the absence of a psychotic illness.

 
If this is the case, then there is the possibility of this illness emerging in one (or more) of the children, as psychosis is by and large a hereditary condition. This doesn’t seem to have been addressed at all. I think EUPD is a bit of a “catch all” diagnosis and until relatively recently wasn’t seen as a treatable mental illness. Very often though patients are wrongly diagnosed and this may well be the case with this mother. Mental health services as I’m sure you know are very stretched and it is easy for people to “slip through the net” as it were.

 
Ah well, those are my thoughts/views for what they’re worth.

Kate Wells

Helping parents leave the jurisdiction

What happens if you don’t know the whole story… or you don’t care? The links between Hemming, Booker and Josephs.

“Any person who embraces one party’s version of events and treats it as the whole truth is making a serious mistake. In most family cases the version given by one side is partial and tendentious; on any view it does not give the other side. The only sensible course is to see what the court says in a judgment on all the evidence”.  Sir Nicholas Wall

This is a post by Sarah Phillimore

On the 27th July 2015 the BBC reported that Marie Black had been found guilty of child sex abuse charges. EDIT – and on May 13th 2016 her application to appeal against her conviction was dismissed. 

Marie Black, 34, of Norwich, stood trial with nine others, including five women, at Norwich Crown Court. Black denied 26 charges. A jury found her guilty of all but three counts.
She was convicted of offences including rape and inciting a child to engage in sexual activity. Two men were found guilty of child sex abuse and another woman was found guilty of assault.
Michael Rogers, 53, from Romford, was found guilty of 14 counts including cruelty, rape and inciting a child to engage in sexual activity. Jason Adams, 43, from Norwich, was convicted of 13 similar counts. Carol Stadler, 60, from Atkinson Close, Bowthorpe, Norwich, was found guilty of assault causing actual bodily harm but cleared of nine other charges, including serious sexual assaults.

Six other defendants were cleared of all charges.

Allegations were first made about Marie Black in 2010. Further evidence was available in 2012 and she was arrested in 2013.

Christopher Booker and Marie Black

But this is not the first time Marie Black’s name has appeared in the media. On 7th July 2012 Christopher Booker wrote about her in an article in the Telegraph. Marie Black and her partner had ‘fled’ to France to give birth to their daughter after being under investigation by Norfolk Social Services. Norfolk wanted to apply for a care order for their child but the court ruled that the child was habitually resident in France and therefore the Norfolk LA had no jurisdiction. Christopher Booker commented:

This is a landmark case which should give cheer to those scores of parents who flee abroad for the birth of children threatened with seizure by our social workers. For this reason, perhaps the British taxpayer’s expenditure on this episode – estimated at £250,000 or more – was not entirely wasted.

He wrote about her again in 2013 – ‘Another couple flee to France only to have their baby taken away’. This was to report on another parent who had successfully left the jurisdiction to escape care proceedings and relied on the Marie Black case as precedent.  Christopher Booker referred to the ‘happy ending’ for Marie Black and her child and applauded the help she had been able to give another parent in the same position:

The mother had already been in touch with Marie Black and Brendan Fleming (although there is still no order from a British court to authorise all that has happened). When the couple appeared in a French court to contest the demand that their baby be deported, the judge was shown a statement citing the Marie Black judgment, making clear that, since Britain had no jurisdiction over the child, deporting her would be illegal. The judge, seemingly out of her depth, adjourned the case, suggesting that it should be heard by a more senior judge in three weeks’ time. We may hope that the new judge can recognise that the law is clear, and that the British authorities had no legal right to arrange what amounted to an act of kidnapping.

But the ending for Marie Black (and presumably her child) we now know was very far from happy. She has been convicted on 23 charges of serious child sexual abuse, including rape.

 

Encouraging and supporting parents to leave the jurisdiction

Christopher Booker is sadly not alone in simply accepting uncritically any complaint made by parents about the child protection system. He is often supported by the former MP John Hemming and Ian Josephs.

John Hemming has also been subject to serious judicial criticism . Of interest is also this article by Jonathan Gornall in 2007 which explains why Hemming first became interested in ‘waging a war’ on children’s services. 

Booker goes rather further than simple uncritical acceptance but instead often ignores published judgments and established facts when writing his articles.

And its not just Christopher Booker’s reporting about the family justice system which is criticised. As George Monbiot commented in the Guardian in May 2011

I have begun to wonder whether there’s a single subject Booker has tackled in recent years which he has not distorted out of all recognition. For how much longer can this go on?

Sadly for all of us, its still going on.

Its one matter to simply write things that are stupid and wrong. It is another, and more dangerous matter, to encourage and even pay for parents to leave the UK, rather than face investigation into the quality of their parenting. I don’t know if Christopher Booker has ever given a parent money to fund leaving the jurisdiction – but he certainly associates with and is sympathetic to those who do.

He has apparently commented on the criminal trial of Marie Black in May 2015 – making his disdain for the criminal process clear and likening this case to  ‘crazy’ allegations of ritual abuse in previous cases which were like an ‘epidemic of collective hysteria’. 

 

The ‘mums on the run’ network – giving money to parents

It is clear that there is a network of people who act to help these parents ‘flee’ the UK.  This website describes it in these terms (and then goes on to discuss articles written by Christopher Booker):

The situation can be stated in a very simple manner. There is now a network of Good Samaritans spanning six countries. The countries are the UK, Ireland, Belgium, France, Spain and Cyprus. Parents, mainly mothers, are fleeing with children and heavily pregnant women and teenaged girls are fleeing to have their children born in a foreign country where their citizenship will make it difficult if not impossible for the British authorities to bring them back for forced adoption.

Now for the very simple bit. The hard-pressed volunteers in the network are seeing no Irish or continental European parents and none from Cyprus. All the fleeing parents are British, desperate to escape from UK Social Services, now commonly referred to as the ‘SS’.

We also know that some in the network put their money where their mouth is. One who openly admits giving cash to parents to help them leave the country, is Ian Josephs. He is based in Monaco and is the author of the infamous ‘ten Golden Rules’ which advises parents not to co-operate with social workers and to think very carefully before reporting even sexual abuse of your children.

BBC Radio 4’s Face the Facts programme in January 2014 ‘Forced Adoption and the Mums on the Run’ examined the network of people helping parents leave the UK rather than face investigation.

Mr Josephs was interviewed and confirmed that he has spent about £30,000 helping parents and he did not conduct any kind of risk assessment about the danger these parents might pose to their children. An article in the Daily Mirror in July 2014 confirmed this figure and said it involved 200 families.

Ian Josephs helped Marie Black leave the UK. She wrote to him from France. 

Hi Ian,

We hope you are well.

Attached is a recent photo for you of L, she will be 10 months old this thursday and is trying to walk already! She is so happy and laughs so much. We feel lucky everyday to have L home with us and we are looking forward to her 1st Christmas.

We get on well with the social worker here and she took us swimming last week and this week will be a baby group. She is also looking into if she knows anyone who can help us with French lessons too.

She commented on how happy L is! We have even been to see Mr Mondin the manager of social services who helped us in Court with a shining report and he has a photo of L on his desk, he was so happy to see us all together last week.

Thank you again in our rescue operation!

Best wishes

Marie, Joe & L

No risk assessment before they leave, no follow up after they’ve gone.

In the interview with the Mirror,  Josephs claims he ‘ploughs through’ ‘piles of documents’ before agreeing to help but other than that he is silent on what criteria he uses to judge whether or not it is safe to send these parents out of the country. He is reported as saying:

I know what I do is controversial. People ask how I know the people I’ve helped don’t go on to do something wicked, but my reply is that even killers are entitled to lawyers. These woman are entitled to a fair chance to keep their children if they have not been convicted of any crime of cruelty and aren’t on drink or drugs.

Not only is no or no adequate risk assessment conducted before giving these parents money, there is no formal follow up or investigation as to how their children fare once they leave the jurisdiction. Sadly, the poll conducted by the Daily Mirror attached to its interview with Ian Josephs, shows 66% of those responding agreed it was right to help ‘pregnant mums’ leave the UK. So its not only Christopher Booker who is willing to uncritically accept reports of a ‘happy ending’.

Ian Josephs later said he does ‘not care’ if the parents have done anything to justify intervention. Because forced adoption is wrong and that justifies his actions. ‘ I don’t care who it is. They have every right to escape’. See this video from 6 mins 50 seconds.

 

Connections between Booker, Josephs and Hemming

Ian Josephs has close connections with both Christopher Booker and the former MP John Hemming, in their self appointed roles as critics of the child protection system and champions of its many alleged victims.

For example:

  • both Booker and Josephs appeared at a ‘Stop Forced Adoption Conference‘ in Birmingham in December 2012, together with Brendan Fleming, the solicitor who represented Marie Black with regard her daughter.
  • There is cross fertilisation from Josephs’ website to Booker’s articles.
  • Also see this article.
  • See this post from Head of Legal in 2013, discussing the joint activities of Booker and Hemming around the ‘forced C-section case’.
  • John Hemming was interviewed for the January 2014 Panorama documentary ‘I want my baby back’ and there advised parents to leave the jurisdiction as they wouldn’t get a fair hearing in the UK. He continues to promote ‘mums on the run’ on his blog – see this post from July 2015. [EDIT – JH now appears to have removed this blog post]
  • See the Justice For Families e-conference with John Hemming and Ian Josephs on 3rd September 2014, ‘Refugees from the UK’. Brian Rothery claims one family arrives in Ireland every week.

 

It’s not always a ‘happy ending’

However, as the Marie Black case demonstrates, it is naive and dangerous to simply take at face value a parent’s assertions that they are nothing but the ‘victims’ of the corrupt family courts. Marie Black has been tried and convicted in a criminal court, on the criminal standard of proof and found guilty by a jury of her peers  – this is just what Ian Josephs has been campaigning for, that no parent should lose their child without a criminal conviction. He said to the Daily Mail in March 2012 

 ‘It’s time the criminal rules of justice applied in the family courts. We need parents to be considered innocent until proven guilty and also be free to talk about what is happening in those courts without being thrown into jail.

So presumably Marie Black would not now qualify for his help to leave the country.

Just how many more ‘unhappy endings’ are out there? If Josephs has paid 200 parents to leave the UK, just how many dangerous parents have been helped to escape scrutiny in this way? We don’t know, because he doesn’t care to find out.

How much longer are Booker, Hemming and Josephs going to be permitted to carry on like this? Just what kind of tragedy will it take to shine a light on their activities?

Apparently Christopher Booker will be writing about the Marie Black case in tomorrow’s Sunday Telegraph. It will be interesting to see what he says and how – if at all – he will try to  justify his role in these events.

If he isn’t actually handing over cash to parents to get them out of the country, with every dangerously false and inaccurate article he writes he is certainly encouraging and supporting those who do.

 

EDIT Sunday 2nd August – there is no article from Christopher Booker in today’s Sunday Telegraph. Further speculation is probably unhelpful given that I am not clear if Marie Black intends to appeal against her conviction. I hope it is a safe conviction. If its not safe I hope it is overturned speedily.

BUT whether the conviction stands or falls, the activities of Booker, Hemming and Josephs remain open to serious criticism. If Marie Black is not a child sex offender, the risk remains that other parents might be. And they are being supported to leave the country with their children – not merely with encouraging words in a newspaper, but with cold, hard cash.

I hope I am not alone in finding this both appalling and dangerous.

EDIT Sunday 9th August 2015 Christopher Booker has now commented in more general terms.

EDIT September 28th 2015. Marie Black is sentenced to a minimum term of 24 years.

EDIT December 4th 2015 – for the latest wilfully misreported case, see this blog post by suesspiciousminds about the Latvian family ‘helped to flee’. Christopher Booker reports the child’s injuries as a ‘slight mark’ whereas in fact they were more akin to a rope burn, the child said his father did it. It’s ironic that Josephs continually asserts that only parents who are convicted in a criminal court should lose their children; but he helps them leave the country before they can be charged with any criminal offence.

Home Education

 

Thanks to our contributor who wishes to remain anonymous. She works primarily as an advocate for parents who home educate. In this post she discusses the legal framework around home education and how to deal with a referral to children’s services to prevent matters escalating. 

Parents have a right to educate their children at home providing they fulfil the requirements of Section 7 of the Education Act 1996, which places a duty on the parents of every child of compulsory school age to cause him or her to receive efficient full-time education suitable to their age, ability and aptitude, and to any special educational needs that they may have, either by regular attendance at school or otherwise.

Home-educating parents or carers are not more likely than others to abuse or neglect their children. However, there have been a number of serious case reviews where home education has been stated as a factor. This has led to the parents in these cases being viewed as having removed their child from school to avoid the scrutiny of safeguarding agencies. Despite there being no case in which home education has been found to be a ‘key’ factor, this no doubt explains the suspicion that some professionals may feel about parents who chose to home educate – and why those parents may sometimes feel as if they are under excessive or unfair scrutiny. 

The Badman Review of home education (DCSF, 2009) recommended a formal registration scheme of children who are home educated and rights for local authority staff to access the home and interview children alone. This review has been subject to serious criticism from the HE community. They point out that these recommendations never became law but some LA rely upon this review to justify acting unlawfully. No doubt there will be continue to be a tension between those who wish to home educate and those who believe that an essential element of child safeguarding is permitting state agencies access to children. 

Sarah Phillimore

I have been referred to children’s services because my child is home educated

It is not unusual for a report to be made to childrens’ services, solely because a child is home educated (HE). In fact around 10% of home educated children known to the Local Authority are referred, although HE children are considerably less likely to end up with a child protection plan than those attending school. Quite often this will be by a misguided neighbour, health visitor or GP, equally often it will be by the former school the child attended. In these cases a teacher will often express concern that the parent is not ‘competent’ to educate the child.

In the case of teaching staff, this is generally not malicious, rather it is because they have trained in a system which makes them view HE as quite alien in its practice and approach, to their own view of what education should look like. HE can be successful without formal learning taking place, where it is totally autonomous (Child led), where a parent has little or no qualification and where the child may appear to be ‘doing nothing’.

Most social workers are just as frustrated as you are that they have been caused extra work because someone does not realise that HE is a viable and lawful choice to make. Often their involvement will end with a ‘sorry to bother you and thank you for explaining’ if you approach matters in a reasonable way.

Legally you do not have to let a social worker into your home and there is no such thing as a ‘safe and well check’ for a HE child. This is because the duty of the social worker is to react to concerns, not to proactively investigate whether a child is at risk simply because the parents have made a minority choice. The Social worker must balance child protection needs with only intervening when it is appropriate. It is not appropriate to intervene simply because a child is HE.

 

What’s the legal position regarding home education?

However, just saying ‘no’ is not helpful to you, it is far better to explain to the social worker that your child is HE and that it is a legal choice for you to make. Do this politely and refer them to the relevant guidelines concerning elective home education for England which are well worth reading to enable you to understand the legal position (guidelines for Wales are currently being reviewed).

In the words of Graham Stuart MP (the chair of the All Party Parliamentary Group on home education)

councils often conflate home education with a child safeguarding risk and seek to impose routine monitoring and inspections. These actions are at odds with government guidelines and can be accompanied by misrepresentation of the legal situation both on parents’ doorsteps and in local authority literature’

If you are prepared and knowledgeable, it is much more likely that any such referral is dealt with quickly and without distress to you or your family.

 

Update – Home Education, changes afoot?

Thanks also to this update from Looked After Child who examines the findings of the Home Education of Children Report 2017 (see below for link and summary) and considers what the rising numbers of children in home education is saying about the support available for disabled children. 

It seems to have taken a while for the Department of Education, Ofsted and others to appreciate that rising numbers of children being home educated is one indication that a significant number of schools are excluding – both formally and informally – children who require adaptations or more support than the school is prepared to make/can provide. This 2017 Ofsted and Care Quality Commission report Local area SEND inspections: one year on makes for very depressing reading on that front.

The Children’s Commissioner Anne Longfield has recently said she is concerned that a number of schools are forcing or “encouraging” children with behavioural issues to leave school. She has also produced a briefing paper Briefing: Falling through the Gaps in Education

Sometimes it is about the cost and sometimes about changing the values and culture within the (specialist day) school to be more welcoming of children who have learning disabilities and/or autism and/or behaviour that the school finds challenging.

Dame Christine Lenehan and Mark Geraghty the authors of a recent report commissioned by Department for Education called Good Intentions, Good Enough? A review of the experiences and outcomes of children and young people in residential special schools and colleges has something similar to say :-

“There can be a vicious circle occurring within the ASD (autistic) cohort. A poor provider triggers challenging behaviour or physical meltdowns (or fails to prevent such events), often exacerbating this with their reactions e.g. restraint, punishment or confinement. Good providers in whose care this behaviour may not have occurred will now not accept the child due to their history and pattern of risk.
Therefore, the child is placed in a more restrictive or secure setting which can result in a worsening situation. Eventually, the child reaches a secure NHS setting which often is wholly inappropriate for their ASD needs. In different circumstances, a good specialist day placement could have worked for this child”.

In this context, a significant number of parents, whose children have neurodisabilities including autism, find themselves considering ‘Home Education’. Years of battling to get a child’s needs first recognized and then met in a school setting, while watching the child’s anxiety increase to the point that they develop extremely poor mental health, brings some parents to consider all alternatives including home-schooling. It is a daunting prospect for many and is likely to involve loss of a household income. Most of us would find it difficult to teach the national curriculum in one subject, never mind all however some parents see no viable alternative. There are also parents who home school by choice.

Review of Home Education following the death of Dylan Seabridge.

The death of Dylan Seabridge in December 2011 raised questions about whether existing safeguarding mechanisms are sufficient for children who are home educated. A review was commissioned by the National Independent Safeguarding Board of Wales in February 2017 to explore possible risks in relation to safeguarding, health and well-being for children and young people who are educated at home.

I’ve extracted sections from this report below because it helpfully analyses the current context and makes recommendations for change.

The report is clear that although some home educated children are abused and neglected there is no reason for believing this is any more or less common than in the general population.
An evidence based review of the risks to children and young people who are educated at home Final Report

Review of existing evidence

Only a small proportion of children are home educated –perhaps 2-3,000 in Wales ( there is no register) There are signs that the numbers are increasing–perhaps doubling over the last 6 years

They are a diverse group of children, including those whose parents choose home education from birth and a larger group who leave school. Often the reasons for children leaving school include bullying, additional needs or a child having other problems at school. Home educated children tend to have poorer access to both universal and specialist services that are provided for children in school

Serious Case Reviews and Child Practice Reviews:

Home education was identified as a feature in 11 Serious Case Reviews and Child Practice Reviews
These broke down into two types of case:

“Withdrawers” in four families home education was part of a withdrawal from services following the identification of concerns. There was evidence that professionals failed to respond to this sufficiently robustly.

“Avoiders” in seven families home education was part of a strategy by parents that prevented, limited or controlled professional contact with children.
This seemed to be associated with controlling and apparently eccentric parents, several of whom may have had undiagnosed mental health problems.

It is clear that where children are maltreated it can be more difficult for this to be identified if a parent wishes to limit access to a child, and home education can and did contribute to that in the serious cases under review. Parents who are abusing or neglecting their children can, do and have used home education as one of the ways of limiting professional contact and therefore protection. Current practice leaves some children at risk because their parents are using home education as a way of controlling and limiting contact with their children.

Recommendations

Recommendation 1: A significantly enhanced support service for home educated children.

A Clear duties for local authorities to support the education and well-being of children who are home educated.
B The Welsh Government and local authorities should ensure that funds are available to deliver this duty to support home educated children, for instance by providing a proportion of the per-pupil funding that is provided for school educated children
C This support service should be delivered by professionals who understand the particular needs and circumstances of home educated children and their families.
D Such support to be developed in partnership with the local home education community as consistent with principles of co-production.
E. The proposed home education support service should fund the sitting of examinations as a right for each child in Wales not only those in school.
F Where children leave the school roll the family should have access to an independent assessment of their child’s educational needs. This assessment would identify whether reasonable steps could be taken by education services to ensure the child remains in school and/or the support needed for the child to be educated at home.
G Schools should be encouraged to be creative in addressing the needs of children who might become home educated where this is not a positive choice by parents, and in particular explore shared educational options. Inspection of schools and evaluation of attendance figures would need to recognise this as a valid option for some children, for instance by excluding them from attendance measures
H Where a child is withdrawn from school and home educated the school and other professionals should assess whether this change might give rise to care and support needs or pose a risk to the well-being or safety of the child. If this is the case a referral to social services should be made.

Recommendation 2: Clearer assessment of the needs and wellbeing of home educated children
A. There should be a register of home educated children in a similar way to the school register.
B. A more holistic assessment of the well-being and education of children educated at home should be undertaken at regular intervals. Such assessments would focus on ensuring that the child is thriving, their education is adequate and would help provide and plan for appropriate support services.
C Such assessments should involve children, as appropriate for age and ability. They should also take place in the child’s home as their place of education.
D. A key decision is whether registration and/or cooperating with assessment should be a legal expectation on parents. Making registration and assessment compulsory would create high levels of resistance from a significant proportion of home educating parents. Yet, a voluntary scheme
would be unlikely to have protected Dylan Seabridge or other children known to have suffered serious abuse or neglect whilst home educated. We therefore recommend that registration and regular assessment should be legal expectations for parents choosing to home educate.

Recommendation 3: An improved response to children where actual or suspected harm is identified and the child is or becomes home educated.

Home education is not a risk factor for child abuse or neglect. However, where there are concerns for a child’s safety or wellbeing home education significantly reduces professional access and child safety monitoring opportunities. Responses to any risk of abuse or neglect identified about a home educated child need to take seriously this reduced level of scrutiny

A. Failure to educate a child may harm their wellbeing and can in itself be a form of neglect. If there are grounds to believe a child is not receiving education, this should result in a referral to social services, either for an assessment of any care and support needs the child and family might have, or, where the level of risk is higher, as a child at risk of neglect.
B . Where actual or suspected abuse or neglect has led to a child being allocated either as a child in need of care and support or on the Child Protection Register, and that child is or becomes home educated, the plan should include as appropriate.
C Where actual or suspected abuse and neglect is identified professionals should assess whether home education appears to be an attempt to avoid professional scrutiny. Where there is evidence that
this is the case it increases the risk of harm to the child. Appropriate legal action and statutory safeguarding procedures should be used to ensure the child is safe.
D Where home education is considered to increase risks to a child, professionals should be aware that education legislation will not provide protection. The safeguarding provisions
of the Children Act 1989 need to be used as appropriate for the child and their circumstances.
E Each local authority should have a named individual with responsibility and expertise in relation to home education and safeguarding. This individual should provide advice and consultancy for the relatively small number of families where home education and safeguarding issues arise.

Recommendation 4:
We recommend that Estyn be given a duty to inspect the adequacy of local authority provision to support and assess home education. Such inspections would need to include educational and social care expertise and knowledge of good practice in home education. This should include designing criteria for inspection that do not take a negative approach to flexi-schooling arrangements.
Such inspections should also consider the adequacy of support and safeguarding for home educated children within each authority.

Finally

Parents who home educate may be very alienated. They and their children may become ‘invisible’ by choice or because services are not configured to meet their needs.

Home education is not a reason in and of itself to consider a child is suffering, or is likely to suffer, significant harm. However, where a child is ‘hidden’, intentionally or not, from services (i.e. there is no engagement with education, health services, or other statutory agencies) it seems unclear how the State is able to fulfil its obligations under Article 19 the UNCRC – Governments must do all they can to ensure that children are protected from all forms of violence, abuse, neglect and bad treatment by their parents or anyone else who looks after them.

Our duties as a society to support, protect and ensure the education of children do not end if they are home educated. The state (some elements of safeguarding continue to be affected by legislation and policy from both the National Assembly for Wales and the UK Parliament) is not currently supporting home educated children or their families. Equally, we can have no confidence that the minority of children educated at home who are being abused or neglected are being identified or protected.

Further information

Home Education of Children Report 2017.

This report was commissioned following the death of Dylan Seabridge in 2011 and it examines Welsh legislation and practices. The authors conclude that home educated children are diverse and are no more likely to suffer abuse than children in the general population but made a number of recommendations:

  • A significantly enhanced support service for home educated children
  • Clearer assessment of the needs and well being of home educated children – including a register
  • An improved response to children where actual or potential harm is suspected and the child moves to being home educated.

Websites and blogs

Education Otherwise -This site provides information and resources for home educating families and those considering home education for the first time, including guidance on home education and the law, SEN and disabilities; downloadable fact sheets covering many aspects of HE; and links to local HE groups across the UK.

Home Education UK – a celebration of families as places of education and parenting.

Home Education Forums – founded in 2009, an information portal and networking community for UK based home educators

Read why this blogger made the decision to home educate her son.

 

Information from Serious Case Reviews

The Report from the NSPCC Home Education: learning from case reviews [2014]. This briefing is based on seven case reviews published since 2008, where elective home education was highlighted as a key factor.

The Serious Case Review looking at the W Family – which deals with a mother who had chosen home education to conceal her abuse of the children and the implications of this for agencies with safeguarding duties for children. 

See also the case of Khyra Ishaq and comments from the ‘No Nationalisation of our Kids’ website:

In July 2010, the Birmingham Safeguarding Children Board published a Serious Case Review [SCR], in respect of the Death of a Child which was identified as Case Number 14. Though not named in the text, media reports made it clear that this was the case of of Khyra Ishaq, a seven year old girl from Handsworth, Birmingham who starved to death in May 2008. The full case review was available on the BSCB website but has been removed – click here to read it.

[Also see this article for extracts from the SCR]

The case hit the headlines because the Secretary of State for Children, Schools and Families at the time of Khyra’s death, Ed Balls, made it his lead example in his argument for imposing regulation on home educating families. Whilst Khyra’s death was widely reported, what most of the public was not told until after the end of the trial of her mother, Angela Gordon and de facto step-father Junaid Abuhamza, was that Khyra had five siblings who were also mistreated and under-fed. Most of the facts of the case had been made known in a High Court care order hearing in relation to the five surviving children. The judgement in this case was given on 6th March 2009 and can be found here.

 

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.