Author Archives: Sarah Phillimore

The Independent Reviewing Officer

Following the case of Re S in 2002 the House of Lords raised concerns that children were ‘getting lost’ in the care system after the court had made final orders and that this could be a breach of the children’s and parents’ Article 8 rights. For further discussion of this case see our post about Article 8 rights and proportionality.

The Government responded with Section 118 of the Adoption and Children Act 2002 which amended the Children Act 1989 and established the role of Independent Reviewing Officer (IRO).

The IRO Handbook  from March 2010 sets out statutory guidance regarding care planning and reviewing arrangements for looked after children.

The key role for the IRO is to improve outcomes for looked after children by reviewing each child’s care plan, making sure it is effective and to ensure that the child’s wishes and feelings are taken into account.

Section 25B of the Children Act 1989 defines the IRO’s role in this way.  They must:

  • monitor the performance by the local authority of their functions in relation to the child’s case;
  • participate, in accordance with regulations made by the appropriate national authority, in any review of the child’s case;
  • ensure that any ascertained wishes and feelings of the child concerning the case are given due consideration by the local authority;
  • perform any other function which is prescribed in regulations made by the appropriate national authority.

Under section 25B(3), the IRO can refer the child’s case to Cafcass.

The Care Planning, Placement and Case Review (England) Regulations 2010/959 give further details of the IRO’s responsibilities, including making sure that the child knows about his/her rights under the Children Act 1989 to apply for section 8 orders or make a complaint about the LA>

The Good Practice Protocol for Public Law Work sets out guidance for a clear understanding of the statutory roles of Cafcass and the IRO and how they work together.

 

Research about the role of the Independent Reviewing Officer.

2014 Research from the National Children’s Bureau

See this report from March 2014 on the role of IROs in England for the National Children’s Bureau, carried out by the Centre for Child and Family Research at Loughborough University.[Edit 17th July 2018 – this link no longer works}  The research concluded that more could be done to make sure the IRO was fulfilling his or her crucial role of ensuring good planning for the child.

As Mr Justice Peter Jackson commented in the foreword:

It is 10 years since IROs were created in response to widespread concern about children in care being lost to sight. Yet the key conclusion of this study is that the IRO role in ensuring high-quality care planning is still to be fully realised. The report is full of examples of what can be achieved by a well-organised service, but it also uncovers the widespread problems that still exist. Here is how one child describes a review meeting:

“It’s like you’re sitting there like a ghost and there was like normal people in the room just speaking about you and you can’t say anything because you’re just like this ghost person.”

Identification of Important elements to the role of the IRO

  • Professional status and respect, demonstrated both by resourcing the service properly and by openly giving IROs ‘permission’ to challenge.
  • IROs with the right skills, particularly the ability to communicate with children and young people, and to know how and when to challenge.
  • Access to expert advice, including independent legal advice and opportunities for reflective practice.
  • Dispute resolution protocols that work, from informal conversations to the escalation of cases to senior management.
  • Child-centred IROs, who demonstrate their commitment to each child and work out the best way to seek their views.
  • Having a focus on outcomes, and holding agencies to account for their contribution towards these, rather than ‘box-ticking’.

 

Conclusions

Making sure that a child’s care plan is reviewed in a timely fashion was perhaps seen as the area where IROs had the greatest impact. This was one of the reasons why the IRO service was created in the first place, and just because timely reviews could now be taken for granted in most cases, their role in ensuring this happens should not be underestimated.

IROs were also seen as having had an influence on cases on an ongoing basis, particularly on ensuring that the care planning process focused on permanency, was child-centred and evidence based. However, respondents’ accounts reflected the variations in practice and performance reported in previous chapters, and the barriers IROs were facing in operating as intended by the national guidance.

IROs were seen as contributing to improved support and services for looked after children mainly through their involvement in individual cases. And again participants’ accounts showed what difference IROs could make when they operated as intended, but also, their limited ability to make a difference when the service was not implemented effectively. We found examples of IROs having an influence at the more strategic level to improve a local authority’s functioning as a corporate parent. However, this is an area of IROs’ work that seems rather under-developed, and where greater clarity is required about expectations, as well as the creation of structures and processes to enable them to have an input at the strategic level.

Finally, when looking at the difference IROs made to children’s lives, respondents had some understandable difficulties attributing any improvements in child outcomes specifically to IROs, given the range of services involved in supporting children. A difficulty that was compounded by the fact that the IRO service has only recently been subject to strengthened guidance and therefore it is probably too soon to establish if they have made a difference to children’s outcomes. Assessing their contribution is important and some thought should be given, both nationally and locally, to how one can assess if and how IROs do make a difference to children’s lives, using the theory of change model outlined at the start of this chapter.

2015 Research from the University of East Anglia

This report, Care Planning and the Role of the IRO looked at how 122 children’s cases had been managed. They concluded that for the most part care planning had gone well but that there was no room for complacency as problems and challenges continued to arise. The repot noted that it was very important to understand the surrounding circumstances which influenced the way the IRO was able to work as opposed to how the IRO ideally should work according to guidance.

The report noted that it would be unfair to blame the IRO or the LA for some of the persistent difficulties and identified a number of factors that were detracting from good care planning for children:

  • delays in court decision making
  • slow or negative responses from other agencies
  • placement shortages
  • staff turnover
  • high workloads
  • the unpredictability of young people and their families.

 

#CPConf2016

It is worrying to note that discussions with the audience at CPConf2016 in Birmingham showed those present had very similar and negative views about the efficacy of the IRO system, many saying that it was simply impossible to get hold of the IRO to talk to them.  I will raise similar questions at #CPConf18 to see if this is a persistent criticism.

Further Reading

For a case where an IRO was criticised for failing to intervene when a LA was not acting properly, see X (Discharge of care order (1)) [2014].

Another case where the IRO came in for heavy criticism involved the LA’s ‘serious and serial’ failures over the separation of twins. in a judgment from November 2018. The court found the IRO had failed to take any step to challenge the LA’s mismanagement of this case. 

National IRO Manager Partnership – the national leadership body in England for statutory Independent Reviewing Officers (IROs) and IRO Managers. The partnership works with stakeholders, and crucially with IROs and the Local Authorities they are engaged with, to champion the issues that are affecting children in care and care leavers.

The Role of the independent Reviewing Officer – from the National IRO Managers Partnership (NIROMP) August 2018

 

Answering birth parents’ questions about adoption

Answering questions about adoption (by an adoptive parent)

A bit of background about me first – I’m a single mum, with three children, all of whom are adopted. Two of my children are now adults; the third is still in primary school. I spend a lot of time online nowadays, and I’ve been really privileged in the last few years to be able to talk with several birth mums about their experiences, and answer some of their questions about adoption and adoptive parents.

I could never truly know what it’s like to lose your child to adoption. But talking to mothers whose children have been adopted, has shown me that it’s often really confusing. They had a huge number of questions about adoption and adoptive parents, and no answers. They didn’t know any adoptive parents themselves, or at least none they felt comfortable asking their questions to.

I think these mothers were incredibly brave to ask me to answer their questions – they didn’t know me, I was just a random adoptive mum. They must have been worried that I would be judgemental or unkind. However it doesn’t matter to me whether someone is an adoptive parent or a birth parent or an adoptee. I hope I can find a way to support everyone who asks me to.

But I strongly feel that these mothers should have had an opportunity somewhere in the process to have all these questions answered, without having to reach out to a stranger on the internet. I am also sure that if these mums I talked to had questions, then there must be a lot more parents/grandparents (and other family) who also have the same questions about adoptive parents and adoption. So I’ve made a list of the questions I’ve been asked the most often by birth parents, and here are my answers. I’ve also included questions I’ve seen online which I haven’t been personally asked.

If you are a mother or father (or grandparent, sibling etc.) whose child (or grandchild, or sibling) is being adopted, then firstly I am sorry you are going through this. I hope you find these answers helpful. If you have any more questions you want to know about adoption that you think I could answer, please comment on this post, and I’ll try my best to answer for you.

And finally, from the bottom of my heart, thank you to the mums who asked me these questions first, who opened my eyes to how the process worked for them and who will remain in my thoughts always, as very courageous people who wanted the best for their children.

………………………………………………………………………………………………….

Why do adoptive parents want to adopt?

Adoptive parents have very different reasons for adopting. Many come to adoption following infertility, but quite a few of us don’t. For me, adoption was my first choice because above all, I wanted to become a mum and love a child with all my heart. I was a single lesbian woman and no other method of becoming a mother felt like the right thing for me to do. I felt that there were so many older children in care that I wasn’t comfortable creating a new life instead of becoming a mum to a child who was already here.

One thing all adoptive parents have in common is that we ALL adopt because we want to experience parenthood, in the same way that people who give birth to their children want to experience parenthood. I’ve seen a couple of people suggest that we want children as “accessories”, but nothing could be further from the truth. I want to reassure families of children in care, that with every adoptive family I’ve ever met, we love our children in exactly the same way as we would love a child born to us, and we would never treat a child any differently because they were adopted.

How does being approved as an adoptive parent work? Is it hard? Do they check up on you thoroughly?

It’s a long process, and it is definitely very thorough. It’s changed now from when I was approved to adopt, but the basics of it are the same. There are several key parts of it. Firstly, there are the basic checks – every adoptive parent will have a criminal records check (certain criminal offences bar you from ever adopting, including any offence against a child) and a medical check to make sure they are well enough to parent a child into adulthood. Social services will also check on prospective parent’s finances, inspect their home and make sure it’s safe for a child, and also get references from family, friends and others. For instance, my employer had to give a reference for me when I adopted the first time.

Secondly, there is a “preparation group”, which all prospective parents will attend at some point during the process. The point of this is to educate, and prospective parents will be taught about the legal process of adoption, why children are available for adoption, about parenting adopted children, and so on.

Thirdly, there are the homestudy visits. This is where a social worker visits the parent/s in their home and talks to them in huge depth about their life and about adoption. For instance, in my homestudies, we talked about my childhood, my family, what support I have around me, my beliefs, my previous relationships (including my sex life), how I would support and parent my adopted child, and about what kind of a child I would be adopting. We basically give social services our life story! A social worker even interviewed one of my ex-partners as part of my assessment.

The social worker who is assessing us will write all this information into a big report. Lastly, the report goes to an Adoption Panel, who review it all, and then recommend whether a parent should be approved to adopt or not.

So it is definitely a thorough process, and whoever adopts your child, will have been checked, questioned and scrutinised as far as possible to make sure they are up to the task.

Do you pay social services to adopt a child?

If we are adopting a child in the UK care system, no we don’t, absolutely not. Not even one pence! You might see people at some point claiming that we pay social services for a child, but this is not true at all. I think some of this confusion is because people see American adoption sites online, and over there, they also have a private adoption system for babies where money is paid by adoptive parents to the adoption agencies. This just doesn’t exist in the UK, so don’t let those sites worry you.

Do you pay any money to anyone else to adopt?

All adoptive parents have to have a (thorough) medical check. Doctor’s surgeries will usually charge for this, in the same way as they might charge for holiday vaccinations or some medical letters.

At the final part of the process, when you apply to the court to legally adopt your child, the court charges a fee. Some adoptive parents have to pay the fee themselves, but sometimes social services pay it for them. I have never paid for the court application for instance; the council have always paid it for me.

There is no other money paid to anyone in the adoption process.

Do you get paid to adopt?

No. Adoption is very different from foster care. Foster carers get paid a weekly allowance to foster. But when you adopt a child, they become your child (legally the same as if you gave birth to them) and so you are entitled to the same as birth parents get for their children (child benefit for instance).

What information do you get given about a child by social services, and what makes you “make your mind up” to adopt that child?

We get a lot of information. The very first thing we see is usually a short profile with just a little bit about the child, and if we are interested, we would get a lot more, in a report which is now called a CPR (Child Permanence Report). The information would include – about the child’s background, their birth family, why the child is in care and being adopted, the child’s personality, interests, behaviours, their health and medical information, their development, if they have any ongoing difficulties or need to be parented a bit differently to other children, about school and friends. It will also say what the plan is for contact after adoption with birth family.

After that, if you are still interested in adopting that child, the child’s social worker reviews your homestudy report and interviews you. Then they (and other members of their adoption team) come to a decision about whether they want to take things further. So it’s not just about you, as a parent, picking out a child. We adoptive parents do not just select a child to adopt like how it was decades ago. Social services have to choose you, based on whether they think you are the best possible parent for this child, and whether you can give this child everything they need.

If social services choose you, you then get even more information. You will meet the foster carer/s, and a medical advisor/paediatrician to get as much information as possible about the child and get all your questions answered. Finally after this, another ‘panel’ approve the match. This whole process of ‘matching’ lasts several months.

Making up your mind that you would like social services to choose you for a certain child, is really different for different people. Some parents ‘just know’ as soon as they read the CPR report, but others don’t and need more time.

When I read my eldest daughter’s information, I felt a strong connection to her, and I felt once I’d read her reports that she was most likely my daughter. I can’t tell you why I felt such a strong connection, it just happened! But we always use the huge amount of information we have to make up our minds as well. We have to be certain we can be the parent this child needs, and that we are comfortable with the child’s behaviour and their needs.

Whoever your child/relatives adoptive parents are, they will have put a huge amount of thought into whether or not to adopt your child/relative, and considered really carefully whether they are the right parents for this child.

Does eye and hair colour come into it?

No! I’ve seen birth parents being told that adoptive parents want children with blonde hair and blue eyes. Actually, we generally couldn’t care less what our child will look like! I’ve certainly never met any adoptive parent who cared whether their child was a blonde, or a brunette, or whatever. We view our children the same as we would a birth child. We wouldn’t care what our birth child looked like, and we don’t care what our adoptive child looks like. We just love them for who they are on the inside.

Personally, I thought it might be helpful for my children, if they looked like I could have given birth to them, because then my children could have privacy – they’d never have nosy strangers thinking ‘ooh, she/he must be adopted!’ based on their appearance. So for me, it was all about the child, and what I thought would be good for my child. It was not about me. As it happens, all my children look quite different, even the two who are birth half siblings!

Do you meet the child before you’ve decided 100% [if you want to adopt them]?

No. Being introduced to the child you are adopting is the very last stage. It’s called “introductions” and it’s where you and the child get to know each other before the child moves in. Before that happens, you’ve had all the information, made up your mind 100%, and been to the panel that’ve approve the match (and of course you’ve bought furniture and decorated etc.!) At this stage, everything is set. Once you’ve read the CPR and been to panel etc., you can’t meet the child and then decide if you want to adopt them. That would be very unfair and wrong for the child. As far as I was concerned, as soon as my children were told about me for the first time (by their foster carers and social worker) then I was absolutely 100% committed to them.

Do you “have” to tell the child that they are adopted? Could it happen that an adoptive family wouldn’t tell the child?

You don’t “have” to tell, because there is no law about it. We have the same freedom as birth parents to tell or not to tell our children about their early lives.

However, it is very rare nowadays for a child not be told they are adopted. Right from day one, we are told how important it is for children to know their story. Social workers and other adoptive parents, we are all very clear to prospective parents about how important it is for children to know about their adoption in an age appropriate way. Parents can access a lot of advice and tips about how best to do this. So whilst it could be that a child wouldn’t be told, it’s very unlikely. I’ve only come across a couple of people in about 18 years who haven’t told their children (and this includes online as well), as opposed to hundreds and hundreds who have.

At what age do you ‘tell’? And how?

Obviously with an older child, they know what’s happening. With a baby or toddler who is too young to understand, the way most adoptive parents try and ‘tell’, is in a way which means the child ‘always knows’. When they are older, they shouldn’t be able to remember a time when they didn’t know they were adopted. This means that for most children adopted as babies, they’ll be having little conversations about adoption by the age of 4 at the latest, but most usually a bit younger than that.

I told my youngest child the story of “the day we met” from when he was 2 years old (and he was 23 months old when we met), and I was also mentioning the word ‘adoption’ from that age. I didn’t bombard him with information; I just dropped in little things here and there. For instance, I remember when at age 3, a neighbour of ours was pregnant, and he pointed at her because she was getting so big. I said that yes, babies grow in the womb which is down in your tummy area, and you grew in X’s womb before you came to live with me. And he repeated that back to me.

All children who are adopted now are supposed to have life story books. These books, which as the name suggests, tell the child’s life story, might help parents to explain to the child the basics.

What are the options for any contact with birth mum? What’s the “norm”?

The norm in my experience is letterbox contact, which means letters going between you and the adoptive parents. This is normally either once or twice a year. It isn’t so common for there to be visits, but if there are, it will most likely be either once or twice a year. I’ve personally done both letters and visits.

For other adult family members, there might also be letterbox or, less commonly, visits.

The plan for contact should be mostly decided on before the child moves into their adoptive home, although it isn’t always. There may be a letterbox agreement which you sign and the adoptive parents sign. This agreement would say when the letters are being sent, to whom, how they are signed, and so on.

As the child gets older, they can have their own say in contact. For instance, my youngest child has asked for all letters to be stopped, so I stopped them. On the other hand, if my child had wanted the opposite and wanted more letters, I would have tried my best to add in another couple of letters a year. For adoptive parents, it’s about supporting our kids and helping them process everything.

What are the options for any contact with siblings? What’s the “norm”?

It definitely depends on where the siblings are living, whether they’ve lived together before and how close their bond is. But in my experience, visits with siblings are much more common than visits with any other members of the child’s birth family, especially if the siblings are also adopted or in long term foster care. I’ve supported my kids through a whole lot of sibling visits over the years. However, if there are no visits, letterbox contact is very often in place for the siblings, usually 1-3 times a year.

Will my child be told that I love them?

I realise how desperately you want your child to know that you love them. Every adoptive parent speaks to their children differently about their past, but most parents, when talking about their (young) child’s birth family, choose to say something along the lines of “your birth mum loves you very much, but can’t look after you”. As our children get older, we add in more about the ‘why’. I certainly have told my children that they are loved, and all the other adoptive parents I’ve met, tell their children the same. I want my children to know that they are loveable people, were the most loveable babies in the world, and that nothing that happened is their fault. I certainly want them to feel loved, and that’s something that all adoptive parents want for their children.

Will my child’s name be changed?

This is something I can’t give an answer to, because every situation is different. I can only say that in nearly all situations, the surname will be changed. Some children have their first names changed, but others don’t. Some of the things that may go into the decision are – whether there is a security risk (whether the child is likely to be recognised), how unusual the name is, its meaning and how old the child is.

I can give you my situation as an example – two of my children were older children when they came to live with me, hence it was entirely up to them what they did with their names. My eldest literally waltzed downstairs one morning and informed me that she was dropping both of her middle names, and had picked two new middle names for herself instead, which were x and y! And that was that, as far as she was concerned. My middle child on the other hand, only ever changed surname, and has kept all her other names as they always have been.

However my youngest child has been entirely named by me (and themselves!). I changed my child’s first name for many reasons, chief among them a security risk from a few people. I kept the old first name as a middle name, because I couldn’t take that away from my child. However, recently my child asked for that (original first) name to go entirely, and to pick a new middle name instead. So I went with my child’s choice, and we picked a new name together, which we are in the process of making legal now.

We are just one family, and every adoptive family will have a different story. So I can’t say whether or not your child will be given a new first or a new middle name. However I can say that if your child’s name is changed, they will at some point be told about it. My youngest always knew which name was originally the first name.

Again, if you have any more questions you want to know about adoptive parents/adoption that you think an adoptive parent could answer, please comment on this post, and I’ll try my best to answer for you.

Bringing public bodies to account

What are my remedies if a public body doesn’t do its job properly?

What happens if you suffer harm because a professional involved in your family life hasn’t done his or her job properly? This can be a very thorny issue because such professionals often have very significant powers to interfer in your private and family life. If they fail to do their job properly – either by failing to act when they should have done, or acting carelessly or irresponsibly – this can result in a lot of emotional distress or harm.

This is clearly relevant in the child protection system – the statutes and accompanying guidance and regulations give individuals who work in the system significant powers and duties to act in certain ways that would be unlawful if attempted by a private individual; for example getting information about your child or removing your child from home.

These laws which give professionals such power, have been passed for the benefit of society as a whole and therefore it is not considered in the public good to curtail or limit their operations in individual cases unless really necessary.  People are expected to carry out their statutory duties ‘in good faith’, i.e not doing anything deliberately malicious or harmful.

However, even if you are not the victim of deliberate malice, the consequences of carelessness from public officials can be very serious. For example, take a botched investigation into abuse of a child; if an innocent parent is wrongly labelled an abuser this can cause enormous harm both emotionally and through loss of reputation or even the ability to look after your child whilst investigations are carried out or the matter comes to court. Equally, if guilty abusive parents aren’t detected, their children remain unprotected and at continuing risk.

If professionals cause harm to parents or children because of the way they have carried out or failed to carry out their statutory responsibilities, what are the legal remedies?

We will look at what are the current options to bring public bodies to account for their actions in the child protection system which  have caused harm to parents or children.

 

Making a formal complaint.

You can complain about the activities of public bodies. For example, see section 26(3) of the Children Act and our post about making a complaint about a professional.

This may be an appropriate remedy if you want acknowledgement that mistakes have been made which could be put right,  or at least procedures could change so the same mistakes are less likely to occur in the future. However, you are highly unlikely to be entitled to claim for any compensation under a statutory complaints scheme.

 

Other remedies

If you are not satisfied with the response under the formal complaints procedure or you need a more urgent remedy and/or compensation for loss you have suffered you will need to consider other remedies. We will consider these remedies in more detail in other posts.

The remedies are:

For information on how to obtain information from public bodies, either generally or about yourself, please see our post on data protection and freedom of information requests.

 

Legal Advice and information

Adoption Legal Centre – legal team advising adopters and potential adopters

Association of Child Abuse Lawyers – an association set up for the benefit of victims, lawyers, experts and other professionals involved in the field of obtaining compensation for the physical, sexual or emotional abuse of children and adults abused in childhood.

Bar Council Legal Hub – an on line directory of barristers and expert witnesses

The Bar Pro Bono Unit is a charity which helps to find pro bono (free) legal assistance from volunteer barristers. If you have cannot afford to pay and have no public funding, it can help with:

  • advice, representation and help at mediation
  • cases in all legal areas
  • cases where proceedings have not yet been started
  • cases in all tribunals and courts in England and Wales

BUT you cannot self refer, applications will only be accepted if they come via a referrer, such as your MP, a lawyer or an advice agency.

The British Institute of Human Rights. – charity that aims to provide people with authoritative and accessible information about human rights.

Citizen’s Advice Bureau – provides free and independent advice to all about their rights and responsibilities.

Child Law Advice  – operated by Coram Children’s Legal Centre, provides specialist advice and information on child, family and education law. If you are calling about family law the number is 0300 330 5480.

Child protection project –  part of Coram Children’s legal centre;  website is no longer being updated, but note useful ‘map’ of child protection proceedings.

Children’s social care law in Wales -to assist social workers, social care practitioners, foster carers and advisers find the current law relating to social care for children and young people in Wales.

Community Care – offers a free down load of a guide for social workers to make their court evidence compliant with Re B-S.

Court of Protection Hub – news, cases and resources about the Court of Protection

The Custody Minefield – provides guides to law and good practice in many areas of family law.

Family Rights Group – good source of help and advice for people involved with children’s services. Call their advice line on 0808 801 0366 or email [email protected].

Family Court Info – family court information for families in the Bristol area, but contains useful general information about the court process, applicable in any area.

No Family Lawyer – help about what to do if you don’t have a family lawyer.

Family Law Questions – website of family law barrister Clive Barker offering information and advice about a number of family law issues.

Families Need Fathers -charity chiefly concerned with the problems of maintaining a child’s relationship with both parents during and after family breakdown. Offers information, advice and support services to help parents to achieve a positive outcome for their children. A Forum and network of over 50 UK Branches also offer the pro-bono guidance of solicitors and others familiar with the family courts.

Just for Kids Law – delivers holistic, client-led support to children and young people from crisis to stability and onwards into independence. They offer community-based legal representation, advocacy and opportunities programme. They aim to be the UK’s leading experts in youth justice law, sharing our knowledge, expertise and model across the UK and the world.

Law Centres Network – Law Centres help those who cannot afford a lawyer. Find a law centre near you.

Law Works for Community Groups – brokers free legal advice to small charities, not-for-profit, voluntary and community organisations and social enterprises in England and Wales. This is done via their network of lawyers in member law firms and in-house legal teams.

Law for Life – a charity working to equip ordinary people with the knowledge, confidence and skills that they need to deal effectively with everyday law-related issues. Runs AdviceNow, a public legal information website.

Legal Beagles -a free consumer law forum offering help, support and debate in many areas of day-to-day life. Covers most topics ranging from debt through to family and employment matters. The users and team are all volunteers and give information and support without liability.

Mother and Child Project – adopts a rights-based approach to try to ensure pregnant women and mothers who are or have been in the care system receive appropriate support to give them the chance to parent their own children.

National Centre for Domestic Violence -NCDV provides a free, fast emergency injunction service to survivors of domestic violence regardless of their financial circumstances, race, gender or sexual orientation. Their service allows anyone to apply for an injunction within 24 hours of first contact (in most circumstances). Works in close partnership with the police, local firms of solicitors and other support agencies (Refuge, Women’s Aid etc) to help survivors obtain speedy protection.

Rightsinfo – uses social media to improve understanding of human rights.

Rights of women – founded in 1975, this is a voluntary organisation committed to informing, educating and empowering women concerning their legal rights.

It has a family law advice line; for advice on issues including:

  • domestic violence and abuse
  • divorce and civil partnership dissolution
  • relationship breakdown
  • issues relating to children, including parental responsibility, child contact and residence

Call 020 7251 6577 (telephone) or 020 7490 2562 (textphone) on Mondays 7pm-9pm, Tuesdays 7pm-9pm, Wednesday 7pm-9pm, Thursday 7pm-9pm and Fridays 12noon-2pm.

Parents accused – site run by solicitor Rachel Carter who offers advice to parents facing allegations that they have caused injury to their child.

Public Access Barristers – find a barrister you can instruct directly via the Bar Council Directory.

Law Firms

Abuse Law – team of solicitors specialising in child abuse claims, based in the North West.

Farleys solicitors – offers advice on making claims against social services. Their advice line is 0845 287 7866. They are based in the North West.

www.latimerlee.com – Latimer Lee solicitors are based at 9 Sankey Street Bury Bl9 0JE Tel: 0161 797 4000

To find a solicitor specialising in child protection law, contact the Solicitors Regulation Authority, Ipsley Court, Redditch, Worcestershire B98 0TD Telephone: 0870 606 2555.

Decisions made by the courts

Family Law Week  is an excellent source of law reports and commentary on all areas of family law.

The British and Irish Legal Information Institute -you can find British and Irish case law & legislation, European Union case law, Law Commission reports, and other law-related British and Irish material. 

Jordans online services – a service which allows you for a fee, to access the latest law reports, case law, commentary, precedents, news and legal and administrative changes.

For commentary on various cases and issues see The Transparency Project 

Child In Need and Child Protection Conferences

Child in Need

Section 17 of the Children Act 1989 sets out that it shall be the general duty of every local authority to

  • to safeguard and promote the welfare of children within their area who are in need; and
  • so far as is consistent with that duty, to promote the upbringing of such children by their families

A Child in Need plan (CIN) can be produced for a child who has need of extra support for his safety, health and/or development, such as a child who has disabilities. Sometimes, if you are finding it difficult to meet all your child’s needs, for whatever reason  you may be able to get some support to help you.

You don’t have to accept a CIN, it is not compulsory. But if you decide you don’t want or won’t benefit from any support offered, it is a good idea to talk it through with the social worker as they might be worried why you don’t want the help, or that if you don’t take the help it could  increase the risk of harm to your child.

A CIN plan should be written down and reviewed at meetings. The plan should name the responsible professional who will make referrals, visit the child etc. The plan should be kept under review at regular meetings.

Concerns have been expressed that some social workers don’t appreciate the difference between ‘child in need’ – where intervention is voluntary – and child protection – where intervention will be force upon parents if it is felt necessary to keep children safe. For example, see this discussion at The Transparency Project by a social worker in August 2018 ‘Oh I’m sorry, did I forget to mention you don’t have to agree to this?’ When social workers forget that interventions under ‘Child in Need’ are voluntary’

The author comments:

My experience is that, in practice, social workers treat the two parts [of the Children Act] as if they are interchangeable. I have no doubt that social workers generally intend to do the best by the children with whom they work, often in very challenging circumstances, but observations of a typical local authority children’s service department suggest that social workers routinely intervene in a child’s life under the guise of section 17, where this may be inappropriate and without providing families with adequate information about the voluntary nature of their involvement. They are not working in partnership with families, but operate as if they are working through the powers available in part five of the Act. In this way, they are intervening in families’ lives potentially without justification, without scrutiny and without the agreement and consent from families.

 

Child Protection Plan

If there are worries that  your child may be at risk of significant harm due to things that you are doing or failing to do as parents, the local authority may have to consider a child protection plan.  This will be drawn up at a child protection conference and should deal with such matters as:

  • Who the key worker is – usually the social worker
  • What needs your child has and how the local authority can help to meet them
  • What needs you have as a parent
  • Who needs to do what and when to reduce concerns for your child

At the first meeting an outline child protection plan will be agreed and a core group identified. The core group will then meet about every six weeks to keep everything under review.

What is the core group?

The core group includes the professionals who need to work with you, such as teachers or health visitors. It is very important that parents attend these meetings so you can give your input and understand what is going on.

How long will the child protection plan last?

This will depend a lot on the circumstances of the case but probably after a year if the local authority are still worried about your child, they will have to think seriously about starting care proceedings.

 

Further reading

CPR post on the pre-proceedings stage.

CPR  post on investigations and referrals, including consideration of the local authority’s duties under section 47 of the Children Act 1989.

See this useful post from the Tees Local Safeguarding Children Board’s Procedure from September 2017

Surviving Safeguarding writes about the child in need meeting.

OPCA – Organised Pseudolegal Commercial Argument; the Canadian Perspective

 

We are grateful to this post from our Canadian contributor who goes by the alias of “Hilfskreuzer Möwe” and who can be found on http://www.quatloos.com/Q-Forum/

For a general summary of OPCA litigation and the Freeman on the Land phenomenon, see our post here.

 OPCA litigation – the Canadian Perspective

Most of us Freeman/Sovereign/OPCA commentators are cautious about out revealing our identities. The Canadian variety of these folks are not as much of a threat as their U.S. counterparts, but there still are very real risks.

Freeman philosophy as a ‘virus’ : the epidemiological model.

I tend to approach Freeman/OPCA ideas from a meme basis. These are a parasitic, highly pathogenic strain of ideas that rapidly transmit in susceptible peer groups. Emphasis there on “susceptible”. Our experience in Canada is that Freeman concepts are tightly concentrated in certain peer groups, where their ‘hosts’ reinforce one-another’s preconceptions and preoccupations. The preferred ‘hosts’ are those who usually are poorly educated but believe themselves highly sophisticated, typically with ‘alternative’, non-conformist, leftist, eco-nik, occupista views. This can both be ‘old hippies’ and their younger anti-authoritarian counterparts.

These persons are thoroughly indoctrinated that state and corporate actors are malevolent, or at least controlled. That facilitates the idea of hidden controlling parties that use false law as the basis for their authority.  Another problematic aspect of this ‘host’ group is that they have typically been taught to follow leaders who appear incredibly flakey to the average person.

The epidemiological model for these ideas actually works very well. Once OPCA ideas reach a susceptible but uninfected population they spread very rapidly, though social peer relationships. This is a period where gurus, old and new, surge their activities and obtain many subscribers. The combination of guru promotion and peer encouragement results in numerous attempts to apply these ideas.

The next stage is collapse. After a certain number of failures the peer groups abandon OPCA ideas, and move on to something else. The time to collapse is affected by whether there is a perception that the OPCA scheme is already complete, or if instead there is a need to adapt or grow ideas – a kind of “let’s do a trial and error” period. ‘Pre-fab’ schemes grow and collapse fast – an excellent example was an outfit called the One People’s Public Trust. It appeared in late 2012, attracted massive attention, but by summer 2013 had all but collapsed.

Another key ‘time to collapse’ factor is knowledge of in-court and other failures. OPCA litigants are notorious for lying and misrepresenting their degree of success. They also tend to interpret delay as success. Media, court judgment, and ‘skeptic’ reporting is very efficient at this stage.

That in part is what myself and a few collaborators are doing on Quatloos at present with Dean Clifford. It’s costing us some cash but we’re ordering court materials and putting them online to demonstrate that his claims and what is actually going on do not match. Nothing wrecks a guru like proof of failure – and that’s where online groups like Quatloos and (in the past) the James Randi Educational Foundation forums have proven very effective. JREF has declined as a useful agent, sad to say.

 

The Three Waves of OPCA belief

Post-collapse a small number of die-hard believers will usually persist and attempt to carry on their OPCA ideas. In Canada we have had three waves of OPCA belief – a racist anti-tax group that is not well characterized at present, the anti-tax “Detaxers”, and now the Freemen. The first two are extinct, except for the holdouts. There’s not much that can be done about them – they just keep coming on, no matter the degree of state, court, and social sanction. They are very few in number, so as a threat that can be contained.

The interesting thing about the holdouts is that they are the pool from which the next wave of gurus emerge – they are the ‘disease carriers’ – once they find another susceptible and hitherto unexposed potential host population for their memes. Epidemiology really is a very effective model for this phenomenon!

 

Review of Canadian Jurisprudence

I found this large review of Canadian OPCA jurisprudence which was prepared as part of a bar association education session:

http://www.cba.org/cba/clc/pdf/clc13_2-7_paper_supplementary.pdf

It’s written by a staff lawyer from the Edmonton Court of Queen’s Bench, the same court that generated Meads v. Meads. Looks like they keep pretty close track of these things!

McKenzie friends

We too are having issues with those. The rules of whether or not a person can represent another in court vary jurisdiction to jurisdiction and court to court. In some instances the rule is strict – a lawyer or nobody. But others are more flexible.

On the Freeman-type front that is less of an issue since now that the courts know what to look for, when a suspect agent appears the judges intervene and exclude that person.

That’s been going on for over a decade – our judges are pretty aggressive on that point, but so far the process is rather informal. Again, the proliferation of written judgments seems to help since the stereotypical ‘bad agent’ is often a former vexatious litigant. Point to the judgment that declared that person vexatious, and you have grounds to remove the problematic McKenzie friend.

 

Academic Commentary

As I previously mentioned our most useful Freeman commentary is in the reported jurisprudence. There are a very few other useful resources – to date academic commentary has not been very helpful, but there are a few exceptions. In my opinion this couple of papers by a Canadian sociologist offer some useful overview and background.

 

The Canadian experience of Freeman and Family law

In the Canadian experience many of the worst cases are family law matters, usually scenarios that involve custody or access. It’s sad because in many instances I suspect the parent who is pushing these actions could have at least some access or role in the child’s life, but the use of Freeman tactics almost guarantees that will not be the result.

Putting together the pieces, it usually looks like the parent(s) who adopt Freeman strategies have some kind of issues – drugs, homelessness, violence, criminal activities. My suspicion has long been that these people have limited success when they try to use lawyers or the ‘legal’ procedures to gain access/custody of their children. Their desperation leads them to use Freeman schemes which just make things worse. That then cycles up.

There aren’t a lot of reported cases of this kind in Canada but our little Canadian observer group has tracked a few via media sources and the parent’s own websites.

 

The Categories of OPCA in Canadian Family Law

It is an evolving phenomenon. It seems the most common ways in which Freeman/OPCA type ideas appear are:

  • as an excuse to evade payment of child and spousal support,
  • as a mechanism to challenge child custody, and
  • as a response to child seizure by state authorities.

These are ways that Freeman concepts are used ‘offensively’.

The first one is kind of basic – a parent claims they have some magic method to exclude themselves from the usual support enforcement procedures. The most comic variation is where the delinquent parent/spouse claims to make their payments from a huge secret bank account operated by state actors. This is a U.S. concept called “Acceptance for Value” (“A4V” for short) or “Redemption”. There’s a nice commentary on that in the Meads decision as Dennis Larry Meads (oops – sorry, :::Dennis-Larry :: of the Meads Family::: ) tried to use that mechanism to pay off his spousal and child support obligations.

In theory, a Freeman should not say “I opt out of my obligations that flow from marriage”, because Freemen say they honour contracts between people – and marriage is usually seen as a contract or contract-like. Well, that’s not to say Freemen don’t still try to work around that.

Here is quite a recent example of that: 

Curle v. Curle, 2014 ONSC 1077. 

At para. 8 it explains how the father in this case claims his marriage never existed because the state’s authority over him was fraudulent.

This case is also a good example of the second category – where Freeman/OPCA ideas are used to claim a superior interest by one parent in children. Here the father claims he has “full title (legal and equitable)” to his children, which trumps the interest of the mother.



Another example of that is found here:

 A.N.B. v. Hancock, 2013 ABQB 97. If you look at paras. 60-64 the father invokes old U.S. slavery-period legal principles to claim his children as property!

The third category is probably the most alarming. Canada has seen a significant number of parents who lose custody of their children to the state and then adopt Freeman/OPCA tactics in court. In a way it’s understandable, as these are desperate, desperate people, who understandably may grasp at any straw. But it’s not helping them. 

This is a growth area and a very troublesome one. Freeman theory says you can opt out of state authority or somehow have rights that trump everyone else. The logical endpoint of that is that if the state takes your child and does not comply with your demands then it is the state that is acting unlawfully – not you. The remedy? Litigation or force. In the A.N.B. v. Hancock matter that is exactly what happened. A second decision discusses A.N.B. trying to get bail after he began threatening family services lawyers and personnel:

 R. v. A.N.B., 2012 ABQB 556

I’m pretty certain I have read A.N.B. ultimately pled guilty and received an eight month sentence – the decision is not reported.

 

Canadian approach – Freeman beliefs in and of themselves equal bad parenting

There is a new development on the family law/Freeman front – courts are starting to use Freeman affiliation against those who advance it. There are a couple trial level Canadian judgments where courts have determined that holding Freeman-type anti-government and anti-authoritarian belief is a basis to restrict child access and custody. Basically it comes to this; if you tell your child they are not subject to state and court authority then you are a bad parent. 

S.H. v G.J., 2013 BCPC 242:

This is a new trend, so we’ll see how far our courts take things.

 

Robert Menard

But the most bizarre example of OPCA strategies in the Canadian experience of family law turns out to be founder and principle guru of the Freeman-on-the-Land community itself – Robert-Arthur: Menard. 

Menard, back in the early 2000’s, was the one who collected a number of pre-existing OPCA ideas and combined those to create the characteristic Freeman-on-the-Land concept set: that everything is a contract, you are only controlled by the government through a ‘strawman’ legal entity attached to you, and that you can unilaterally ‘contract out’ of that strawman bond.

But that wasn’t his first obsession. It was his daughter. Menard claims to have a daughter he fathered with a underage street child he met in a bar. The newborn daughter, Elizabeth Anne Elaine, was then ‘abducted’ by child welfare services. Menard’s initial obsession was an idea that a parent signing a birth certificate turns a child into the government’s property. Here, the mother of his child did that, and that’s why Menard believes he could not keep his child.

Rather than provide more detail, I’d suggest those interested read Menard’s book on the subject “Your Child Or Her Life! DECEPTION AND EVIL IN THE Ministry of Children, Family and Community Development”, by Robert Arthur: – www.angelfire.com/planet/thinkfree/childorlife.pdf



It’s pretty extraordinary.

Menard entered into a relationship with a much younger individual, probably a very troubled person. A child resulted. The mother appears to have voluntarily given up the child for adoption. So, Menard faces a challenge:

1. the nature of his relationship with the mother;

2. his inability to parent, his absence of any useful work or life skills, probable drug use and addictions, and lack of finances;

3. the fact the mother of his child wants him no-where near the kid, and probably herself; and

4. his genuine emotion and bond to his child and his wish to be a parent.

He has failed himself, his child, and the child’s mother. If he were honest to himself the consequences would be, at a minimum, grim. So he reverses the blame, and puts the fault outside himself. If only he had been given a chance. He’d have shown them all what he could do. It wasn’t his fault. He was denied that chance by sinister government authorities who enslave the Canadian population – and the vile mechanism by which they derived the authority to seize his child. Her mother had signed a birth certificate.

 In Canada we have seen this particular drama revisited in various forms, with other troubled parents. These are, perhaps, the most difficult OPCA litigants to control and assist. I think it is because they know, on some level, their error.

There’s a weird symmetry that these desperate, traumatized parents will be the last Freemen – the ones who just won’t give up – and in that way they are precisely the same as the first.

 

Final care order with child placed at home

It is possible that a care order can be made but the care plan is for the child to remain at home. This used to be quite unusual but may become more common as the requirement is now that care proceedings must conclude as soon as possible or in any event take no longer than 26 weeks.

The difficulty with this scenario, is what happens if the LA don’t think things are going well at home and they decide they want to remove your child?

 

What happens if the LA want to remove your child after final care order is made?

Parents have the option of applying to discharge the care order under section 39 of the Children Act 1989.

However, this is not an option that is useful in an urgent situation because takes time for the necessary reports to be written and evidence gathered. Further, parents won’t automatically get help with paying for lawyers.

 

What can the parents do to act quickly in this situation?

Injunctions under the Human Rights Act 1998

This issue was death with in the Matter of DE (A Child) in 2014.  There were concerns about how DE’s parents would cope looking after him as both parents had learning disabilities. However, with a package of support and the help of extended family, DE was able to live with his parents from birth.

In November 2012 when D was aged 11 months, the court made a final care order supporting the LA plan that DE remain at home with his parents but subject to  a care order. This would be kept under review – if all was going well, the LA might apply for a supervision order instead. If things were not going well, the LA would remove DE from his parent’s care.

The LA became increasingly worried about the care that DE’s parents were giving him, considering that the parents needed constant prompting about issues of safety both in and outside the home.  In March 2014 the LA told the parents that they were going to remove DE in a month’s time.

The father applied for an injunction under section 8(1) of the Human Rights Act 1998 to prevent the LA removing DE as there was no urgent need to do so. The LA responded that they were entitled to act in this way as they had a care order and the responsibility of making decisions for the child had therefore passed to them; the court could only intervene if what the LA was doing was unlawful. The Judge felt he had no choice but to refuse the father’s application for an injunction and DE was removed.

The father appealed and Mr Justice Baker concluded that the first judge was wrong to say he could not go behind the care order. The court did have the power to make an injunction to stop the LA removing the child.

Although the LA has the power under section 33(3) of the Children Act 1989 to determine how others may exercise their parental responsibility for child, under section 33(4) they can only exercise that power if to do so is necessary to safeguard or promote the child’s welfare.

Therefore a LA should only remove a child from home under a care order if removal meets the requirement of necessity. If removal is not necessary, the LA are proposing to act in a way which breaches Article 8 of the ECHR  – and  the court has the power to stop them by way of injunction using the Human Rights Act 1998.

The court said:

34. To my mind, where a care order has been granted on the basis of a care plan providing that the child should remain at home, a local authority considering changing the plan and removing the child permanently from the family is obliged in law to follow the same approach. It must have regard to the fact that permanent placement outside the family is to be preferred only as a last resort where nothing else will do. Before making its decision, it must rigorously analyse all the realistic options, considering the arguments for and against each option. This is an essential process, not only as a matter of good practice, but also because the local authority will inevitably have to demonstrate its analysis in any court proceedings that follow the change of care plan, either on an application for the discharge of the care order or an application for placement order under the Adoption and Children Act 2002. This process of rigorous analysis of all realistic options should be an essential feature of all long-term planning for children. And, as indicated by Munby J in Re G, the local authority must fully involve the parents in its decision-making process.

 

35. While this process is being carried out, the child should remain at home under the care order, unless his safety and welfare requires that he be removed immediately. This is the appropriate test when deciding whether the child should be removed under an interim care order, pending determination of an application under s.31 of the Children Act: Re L-A (Children) [2009] EWCA Civ 822. The same test should also apply when a local authority’s decision to remove a child placed at home under a care order has led to an application by the parents to discharge the order and the court has to decide whether the child should be removed pending determination of the discharge application. As set out above, under s.33(4) of the 1989, the local authority may not exercise its powers under a care order to determine how a parent may exercise his or her parental responsibility for the child unless satisfied it is necessary to do so to safeguard or promote the child’s welfare. For a local authority to remove a child in circumstances where its welfare did not require it would be manifestly unlawful and an unjustifiable interference with the family’s Article 8 rights.

 

36. In submissions before the district judge, and before this court, it was argued on behalf of the local authority that its removal of D from the family home was lawful simply by reason of the care order. That submission is fundamentally misconceived. The local authority’s removal of the child would only be lawful if necessary to safeguard or promote his welfare. Any other removal, or threatened removal, of the child is prima facie unlawful and an interference of the Article 8 rights of the parents and child. In such circumstances, the parents are entitled to seek an injunction under s.8 of the HRA.

The court ordered a further hearing in a few weeks time in order to consider whether DE should be returned to his parents’ care whilst all the necessary evidence was gathered to proceed with an application to discharge the care order.

 

Guidance from the court for future cases.

(1) In every case where a care order is made on the basis of a care plan providing that a child should live at home with his or her parents, it should be a term of the care plan, and a recital in the care order, that the local authority agrees to give not less than fourteen days notice of a removal of the child, save in an emergency. I consider that fourteen days is an appropriate period, on the one hand to avoid unnecessary delay but, on the other hand, to allow the parents an opportunity to obtain legal advice.

(2) Where a care order has been granted on the basis of a care plan providing that the child should remain at home, a local authority considering changing the plan and removing the child permanently from the family must have regard to the fact that permanent placement outside the family is to be preferred only as a last resort where nothing else will do and must rigorously analyse all the realistic options, considering the arguments for and against each option. Furthermore, it must involve the parents properly in the decision-making process.

(3) In every case where a parent decides to apply to discharge a care order in circumstances where the local authority has given notice of intention to remove a child placed at home under a care order, the parent should consider whether to apply in addition for an injunction under s.8 of the HRA to prevent the local authority from removing the child pending the determination of the discharge application. If the parent decides to apply for an injunction, that application should be issued at the same time as the discharge application.

(4) When a local authority, having given notice of its intention to remove a child placed at home under a care order, is given notice of an application for discharge of the care, the local authority must consider whether the child’s welfare requires his immediate removal. Furthermore, the authority must keep a written record demonstrating that it has considered this question and recording the reasons for its decision. In reaching its decision on this point, the local authority must again inter alia consult with the parents. Any removal of a child in circumstances where the child’s welfare does not require immediate removal, or without proper consideration and consultation, is likely to be an unlawful interference with the Article 8 rights of the parent and child.

(5) On receipt of an application to discharge a care order, where the child has been living at home, the allocation gatekeeper at the designated family centre should check whether it is accompanied by an application under s.8 of HRA and, if not, whether the circumstances might give rise to such an application. This check is needed because, as discussed below, automatic legal aid is not at present available for such applications to discharge a care order, and it is therefore likely that such applications may be made by parents acting in person. In cases where the discharge application is accompanied by an application for an order under s.8 HRA, or the allocation gatekeeper considers that the circumstances might give rise to such an application, he or she should allocate the case as soon as possible to a circuit judge for case management. Any application for an injunction in these circumstances must be listed for an early hearing.

(6) On hearing an application for an injunction under s.8 HRA to restrain a local authority removing a child living at home under a care order pending determination of an application to discharge the care order, the court should normally grant the injunction unless the child’s welfare requires his immediate removal from the family home.

The case of K (A Child) [2018] EWCA Civ 2512 (08 August 2018)

This is a useful case to note criticism of the LA for failing to follow the protocol set out above, on the basis that they thought the situation was one of emergency. The court was clear that the LA must be prepared to justify their decision. Proportionality remains a key consideration and the court will need to balance the risks of harm caused by removal against risks of harm if child is left at home.

The court commented at para 65 of the judgment that even when removal takes place as a stated emergency

In the case of a true emergency, once the child in question has been removed there should, thereafter, be a rapid and thorough implementation of the applicable parts of the Re: DE protocol without having to wait for an application to discharge the care order being made. This is with a view to seeing whether the child can be returned home with different or further support or supervision pending a final hearing. It remains of considerable concern to me that, notwithstanding my order, no evidence has been produced in relation to the decision-making process in this case. I can, therefore, only conclude that the decision was made rapidly and has not been reconsidered since.

Further reading

For further discussion about the case of Re DE and its implications, see this blog post from suesspicsiousminds and this relating to K (A Child) 

 

 

The Freeman and Common Law

I have been told if I declare myself a ‘Freeman’ that I don’t have to do what the court says and the court has no authority over me?

You need to be very careful about this. Over a number of years the ‘Freeman on the land’ movement has gathered numbers in countries that rely on ‘common law’.

Freeman on the land are also known as FMOTL, FOTL, “Footle” or simply freeman.

In essence, they say that they do not choose to be governed by the laws of their countries and that the courts therefore cannot make orders which impact on them without their consent.

There are a number of people you can find on line who will offer to sell you information about how to ‘resist’ the courts by using their arguments about common law or ‘natural law’.

A commonly advised strategy is to claim that all interactions between the state, courts, and individuals are contracts and that any attempt by the court to encourage an individual to engage with court proceedings is the court trying to form a contract,  which the individual can  reject and thus go on to  refuse even simple requests to sit, stand or acknowledge their identity within court proceedings.

Many ‘Freeman’ will not use the name on their birth certificate and refer to themselves, for example, as ‘John of the family Smith’ thus emphasising that they reject any attempt by the State to control them without their consent.

You can read more about the movement here. 

We would be very interested to learn of any family case where ‘Freeman’ arguments have been deployed and have met with success because at present we are not aware of any such case – in fact the reverse appears to be true; ‘Freeman’ arguments appear to be positively detrimental to people’s chances of success in the family (or any other) court.

 

What is common law?

‘Common law’ is the law made by the courts over many hundreds of years. As the courts made decisions, their rulings  in particular cases became useful indications of how to decide other arguments that followed and over time ‘common law’ developed as a collection of legal rules and principles that the courts would apply to all cases.

The doctrine of ‘precedent’ tries to ensure that the common law is applied in the same way by the different courts; the courts must follow the previous decisions of other courts unless it can be argued that the present situation can be ‘distinguished’ from other similar cases. Any decision of a more important court, such as the Court of Appeal, is binding upon any other lower court, so even if the lower court doesn’t agree with what the Court of Appeal said, they have to follow it.

What is statute law?

But as our society grew and got more complicated it required more central organisation and the role of the State as lawmaker increased in importance. Statute law is the law made by Acts of Parliament, such as the Children Act 1989. If a principle of common law conflicts with a clear statutory provision, the statute wins. However, common law is still relevant if there are any areas which haven’t been subject to statutory law, or if the statute is unclear or difficult to interpret.

 

The Myth of the Magna Carta

This plays an important role in Freeman philosophy and has been elevated to a status far beyond what it actually represents. Ironically, this myth has taken firm hold in the minds of ‘common people’  – who were excluded from the benefits of the Charter ‘by design for over 100 years’ – see Lord Mostyn below.

For further explanation about the Magna Carta, see this blog post or this one. In essence, It was a list of demands to King John in 1215 from various noblemen, to which he reluctantly agreed. Article XXIX is often cited in support of arguments that the courts or Parliament cannot force people to do things they have not consented to do:

NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.

Mr Justice Mostyn offers a masterly and detailed examination of ‘Magna Carta and Access to Justice in Family Proceedings’ in a lecture in June 2015; demonstrating how the ‘myth’ developed of the Magna Carta as the ‘foundation document of the English constitution’ when instead, it was little more than a ‘technical catalogue of feudal regulations’, for example,  that all fish- weirs were to be removed from the Thames and elsewhere. No-one was to be forced to build bridges across rivers.  He cites Lord Sumption’s comments at para 29 and 30:

So when we commemorate Magna Carta, perhaps the first question that we should ask ourselves is this: do we really need the force of myth to sustain our belief in democracy? Do we need to derive our belief in democracy and the rule of law from a group of muscular conservative millionaires from the north of England, who thought in French, knew no Latin or English, and died more than three quarters of a millennium ago? I rather hope not… Yet Magna Carta matters, if not for the reasons commonly put forward. Some documents are less important for what they say than for what people wrongly think that they say. Some legislation has a symbolic significance quite distinct from any principle which it actually enacts. Thus it is with Magna Carta. It has become part of the rhetoric of a libertarian tradition based on the rule of law that represents a precocious and distinctively English contribution to western political theory. The point is that we have to stop thinking about it just as a medieval document. It is really a chapter in the constitutional history of seventeenth century England and eighteenth century America.

 

What are the ‘Freeman’ saying about the law?

But the typical freeman is not overly concerned by facts or history. The Magna Carta has become the lodestone of their philosophy that, as ‘freemen’ they do not have to obey ‘fictitious laws’  One Freeman describes it in this way (see Fmotl.com)

What is a Freeman-on-the-land? Well, it isn’t someone who remains outside the law. No-one is outside the law, so this is not a proposition for anarchy. But – it all depends on what is meant by ‘law’. And that’s the catch. What you have grown up to assume is ‘the law’ is not, in point of fact, the law. That’s The Grand Deception. Hitler was right: “If the lie is big enough, the People will fall for it”.Once you know the deception, and what the law actually is, you’ll realise how the wool has been firmly and deliberately pulled over your eyes, your parent’s eyes, and those of everyone you know.

The operation of the law is described in this way:

The law can give rise to a FICTION, but a fiction cannot give rise to a law. Consequently a legal fiction called THE GOVERNMENT has no power to make LAW. It is, in point of fact, BOUND BY LAW (like everyone else, and including all other legal fictions). PARLIAMENT is another legal fiction entity. Statutes created by Parliament are not, therefore, the LAW. They are ‘legislated rules for a society’ and ONLY APPLICABLE TO MEMBERS OF THAT SOCIETY. Join a different society, and you would be bound by a different set of rules. (If this were not the case it would be impossible to become, for example, a Freemason and be bound by the rules of Freemasonry). Statutes are nothing more than the Company Policy of THE UNITED KINGDOM CORPORATION, or THE UNITED STATES OF AMERICA CORPORATION, etc. (See ‘society’, below)

Only a sovereign flesh and blood human being, with a living soul, has a Mind. Only something with a Mind is capable of devising a CLAIM. Legal fictions are soulless, and do not possess a distinct Mind. They cannot, therefore, in LAW, make a CLAIM.

Consequent to the foregoing, and since the Judiciary in a court de facto derives all its power from colour-of-law/Statutes, then no court de facto has any power over you as a sovereign human being, IN FACT (although, of course, they don’t bother to tell you!). A court de jure is the only kind of court to which you are subject under Common Law, and there are none of those left (unless you insist that the court operates de jure, by demanding a Trial by Jury. But they will attempt to resist that with every fibre in their ‘corporate’, soulless, ‘bodies’).

What is the problem with using Freeman arguments in a family court?

The family court can and will enforce its orders against you

The family court does not accept that Parliament is a ‘legal fiction’  or that the Magna Carta operates to remove their jurisdiction. Thus, the family court can do nothing other than follow the relevant statute law and case law which dictates what it must do when making decisions about children.

The family court has very significant powers – such as removing your children from your care – in order to meet its statutory obligations. Thus the family court has both the will and the means to enforce its orders, with the assistance of the police if necessary.

 

You risk not being able to make arguments in court that will benefit your family

The family court can make orders even if you attend court and say you will not engage because you are a Freeman on the land. You will risk losing the opportunity to be heard about what you think is best for your children.

Therefore, you need to give very careful consideration to whether or not attempting to mount a Freeman on the land argument is actually going to help your family. It is particularly important to be very wary of anyone who wants you to pay them money  for any documents or advice on how to conduct a family case.

If you are a parent in care proceedings then you will be entitled to non means, non merits tested public funding to instruct the lawyer of your choice.

See our post from a family law barrister about her role.

If you do want to represent yourself in court, you may be interested in our post about litigants in person – what if I don’t have a lawyer?

 

Views from Judges, bloggers and psychiatrists

You may be interested in this blog post by Adam Wagner of the Human Rights blog, where he considers the Freeman movement and comments:

This movement is not just silly, it is also dangerous, and seemingly gaining popularity through numerous internet sites. I can provide two recent examples where it definitely did not help, and probably did harm to, people in the justice system.

The first is the case of Elizabeth Watson and Victoria Haigh, the former of which was sentenced to 9 months in prison (later suspended) for publishing details online about sex abuse allegations made by Ms Haigh against her child’s father. Haigh’s case was taken up by John Hemming MP, and was one of the “super-injunctions” he revealed using Parliamentary privilege. She was ultimately found by the most senior family judge to be a fabricator who had coached her daughter to lie about being abused by her ex-partner.

Both Haigh and Watson considered themselves Freemen of the Land, who attempted to step outside of the system. It seems likely that at least in Watson’s case, her belief that she had “stepped outside of the system” led to her brazenly to flout contempt laws for as long as she did.

My second example arose when I did jury service last month (a generally positive experience – see my comment on it here). One of the trials involved a defendant who was accused of stealing sports cars. When we entered the court, the judge told us that the defendant had released his legal team and was denying the court’s jurisdiction. He refused to cross-examine witnesses – rather, he used the opportunity to ask the judge whether his jurisdiction arose from maritime law – and his closing statement involved the reading of a latin phrase and stating that he was the “official representative of the legal fiction known as…”

We found the Defendant guilty on 7 of 8 counts, and I will not say anything about our reasoning. I do suspect that the car stealing Defendant’s bizarre and misguided defence influenced the judge’s sentencing, and I also imagine that if he had retained his representation he may have pleaded guilty in any event. Either way, he probably went to prison for longer as a result of his attempt to trying to “step outside of the system“.

 

See this comment from a Canadian Judge, which we discuss in more detail below:

OPCA (Organised Pseduolegal Commercial Argument) strategies as brought before this Court have proven disruptive, inflict unnecessary expenses on other parties, and are ultimately harmful to the persons who appear in court and attempt to invoke these vexatious strategies. Because of the nonsense they argue, OPCA litigants are invariably unsuccessful and their positions dismissed, typically without written reasons.

Thus there is a serious risk that If you concentrate on making your arguments about why the court should recognise you as a ‘Freeman’ then any relevant arguments you do have about how the law should be applied in your child’s case, will not get heard.

There is a further risk that if you display the stereotypical behaviour of a ‘Freeman’, such as reliance on pseuduolegal language this may even raise doubts about your mental health and your ability to understand and participate in proceedings.

There is an interesting article from The International Journal of Forensic Mental Health in 2013 which considered the presentation of the Sovereign Citizens Movement in Canada, which follows the ‘Freeman’ philosophy. The authors conclude that the majority of ‘Sovereign Citizens’ present with many features that mimic psychotic features of mental illness.

The Sovereign Citizen movement supports a number of unusual beliefs that may be mistaken for psychotic symptomatology. These individuals present with many features which may appear psychotic in nature, including bizarre and paranoid beliefs as well as unusual speech and behavior. Despite this compelling psychotic mimicry, it is the authors’ opinion that the majority are not truly psychotic. Timely recognition and accurate assessment of Sovereign Citizen patients is crucial in order to minimize harm in the form of unnecessary treatment and hospitalization, as well as delays in court proceedings incurred by questions such as whether they are Unfit to Stand Trial. This paper provides a descriptive profile of distinguishing features which may be observed when assessing a Sovereign Citizen patient, with an emphasis on clinical presentation, diagnostic challenges, and management-related issues.

The Canadian response – Organised Pseduolegal Commerical Arguments

We discuss the Canadian response in more detail here.

There is a very interesting decision from a Canadian judge here, where he discusses at length the problems caused by such ‘Organised Pseudolegal Commercial Argument’ (OPCA) . He is particularly troubled by the impact of various ‘gurus’ in this field, who charge money for their services.

The judge also set down standards for any future dealings with OPCA litigants:

[256] Given the intrinsically vexatious nature of OPCA methodologies, which I review in detail below, it is appropriate that a court adopt special procedures for documents that show OPCA indicia, which may include:

1. that court clerks reject the materials that do not conform with required standards; 2012 ABQB 571 (CanLII) 60

2. that the court clerks accept and mark these materials as ‘received’ rather than ‘filed’; and

3.that materials that disclose OPCA characteristics may be reviewed by a judge without further submission or representation by the litigants, and that the judge may:

  • declare that the litigation, application, or defence is frivolous, irrelevant or improper (Rule 3.68(2)(c)), or an abuse of process (Rule 3.68(2)(d)), also Canam Enterprises Inc v. Coles, (2000), 51 O.R. (3d) 481 (Ont. C.A.) at paras 55-56, affirmed 2002 SCC 63, [2002] 3 S.C.R. 307;
  • order that the documents are irrelevant to the substance of the litigation, but are only retained on file as evidence that is potentially relevant to costs against the OPCA litigant, vexatious status of the litigation and litigant, and/or whether the litigant has engaged in criminal or contemptuous misconduct.
  • reject the documents and order that if the litigant wishes to continue its action, application, or defence, the litigant then file replacement documentation that conforms to court formalities and does not involve irrelevant OPCA arguments;
  • order that the litigant appear a before the court in a ‘show cause’ hearing to prove the litigant has an action or defence that is recognized in law; that hearing need not involve participation of the other party or parties; and
  • assign fines, as authorized by Rule 10.49(1).

The Judge also warned that OPCA litigants are known to engage in disruptive and inappropriate in-court conduct and thus it may be necessary to increase in-court security.

If the Freeman on the land movement continues to gain momentum in the UK, it may be that our courts have to consider similar responses.

EDIT ‘class actions’ in family cases.

As of August 2018 there is a particularly nasty Facebook group which is claiming a ‘class action’ in the ‘court of common law’ to get people’s children back. It says it won’t cost parents anything but I strongly suspect that money will be changing hands somewhere along the line.

https://twitter.com/SVPhillimore/status/1031424445062307840

PLEASE DO NOT GET INVOLVED WITH THIS. There is no possible way that ‘a court of common law’ can make or enforce orders over the family courts. You are being deluded and scammed in a really heartless way. Also, if you hand over details about your children which end up being published on line you could find that you have committed a criminal offence. See this post about transparency for what you can and cannot publish about children in care proceedings.

What is CAFCASS? Who is the guardian?

Children and Families Court Advisory and Support Service

This gives us the acronym ‘CAFCASS’. The main function of Cafcass is to advise the court about what is in the best interests of the child whom it represents in family proceedings.

Cafcass was created by section 12 of and Schedule 2 to the Criminal Justice and Court Services Act 2000 (CJCSA 2000).

See also the Family Procedure Rules 2010 Part 12  and Part 16 and Practice Directions 12A and 16A.

  • The official Cafcass website is here.
  • The Cafcass Operating Framework
  • Ofsted published its first national report about how well Cafcass was doing in 2014, concluding that there had been very significant improvements since 2009 and it was now an effective organisation.
  • The Association of Directors of Children’s Services (ADCS) has published a number of Good Practice guides for Cafcass.
  • However, it seems that complaints made about Cafcass are rising and there are worries about how effectively Cafcass is either recording or responding to those complaints. See this post from Pink Tape.

 

What was CAFCASS set up to do?

The principal functions of the Service are set out in section 12(1) of the CJCSA 2000.

(1) In respect of family proceedings in which the welfare of children is or may be in question, it is a function of the Service to—
(a) safeguard and promote the welfare of the children,
(b) give advice to any court about any application made to it in such proceedings,
(c) make provision for the children to be represented in such proceedings,
(d) provide information, advice and other support for the children and their families.

 

How does CAFCASS safeguard and promote the welfare of children in care proceedings?

By providing ‘guardians’ to represent children in care proceedings. See Rule 16.3 of the Family Procedure Rules.

Guardians are considered a very important part of care proceedings. Baker J commented in 2013:

A crucial feature of the guardian’s role has been the early appointment, right at the outset of the proceedings. So often it is decisions taken at that stage that have a defining influence on the eventual outcome as well as a fundamental impact on the child. An experienced guardian is able to come fresh to a case and bring the wisdom of their expertise to bear on the immediate decisions that have to be made at the outset of proceedings … In cases where the social worker, advocates and the tribunal may lack much experience, the guardian’s role is vital…

Research from Bristol University in 2011 described the role of the guardian in this way:

The children’s guardian is an independent professional, responsible to the court for their recommendations. Their role is to investigate the child’s circumstances, usually to instruct the child’s solicitor, to represent the child’s best interests, and to advise the court about the child’s welfare and specific matters such as making other people parties to the proceedings. The children’s guardian provides an analysis of the child’s circumstances at various points in the case in order to assist the court to decide what expert assessments are required and whether the proposals of the parties match the child’s welfare needs. A children’s guardian can influence the ways both local authorities and parents view the child’s care, and consequently help them to agree arrangements. They are regarded as highly influential in care proceedings (Masson and Winn Oakley 1999; Hunt 2009).

Because the guardian represents the child they are are not in the ‘camp’ of either the LA or the parents, and will thus often have considerable influence over the court’s decision.  A Judge will need to give clear reasons for not following the guardian’s recommendation.

For an interesting case about what happened when a LA disagreed with the views of a guardian, see this case from 2011.

Under rule 16.3 of the Family Procedure Rules, the court must appoint a guardian where the child is subject to ‘specified proceedings’, unless the court is satisfied it is not necessary to safeguard the interests of the child.

‘Specified proceedings’  is defined by section 41(6) of the Children Act 1989 and includes any application for a care or supervision order.

 

What does the court do after a children’s guardian has been appointed?

See Rule 16.18
(1) Where the court appoints a children’s guardian under rule 16.3 a court officer will record the appointment and, as soon as practicable, will –
(a) inform the parties and CAFCASS about the court’s decision; and
(b) unless it has already been sent, send the children’s guardian a copy of the application and copies of any document filed with the court in the proceedings.
(2) A court officer has a continuing duty to send the children’s guardian a copy of any other document filed with the court during the course of the proceedings.

 

Powers and duties of the children’s guardian.

See Rule 16.20 of the Family Procedure Rules. The guardian must act on behalf of the child in the court proceedings to safeguard the child’s interests. The guardian must also provide the court with other assistance that it requires.

The guardian is independent and seen as a safeguard against poor social work practice; section 42 of the Children Act 1989 gives the guardian extensive access to see and copy documents held by the local authority.

The guardian will interview family members, talk to social workers and other relevant professionals and read the court papers in order to produce written recommendations to the court. If the child is old enough the guardian will take time to go and see the child and make sure his wishes and feelings are understood.

As the guardian’s analysis of the case is likely to be very influential, it is important for parents to make time to meet with the guardian and try to discuss what is going on.

Sir Nicholas Wall, then the President of the Family Division considered in 2011 what should happen when guardians meet to talk about ‘live cases’ with the local authority.

115. Family law is multi-disciplinary and cooperative. It is inevitable and quite proper that officers of CAFCASS and members of the local authority will meet and discuss matters of mutual interest. The same applies to any professional body engaged in family proceedings. I agree with the general consensus, however, that where the topic under discussion is a “live” case – that is a case before the court – such conversations should be (a) rare; (b) strictly necessary for the proper progress of the case; (c) minuted; and (4) disclosed to all the other parties in the proceedings and available, if required, to the court.

116. Despite the confidentiality of the proceedings overall and the fact that the hearings take place in private, the watchword of family justice is “openness”. Within the context of the proceedings, each party must know what is going on.

The Guardian is NOT an advocate for the court

The Guardian’s role is an important one, but must not be overstated. The Guardian represents the interests of the children and therefore does not have a duty to act as an advocate for the court, for e.g. by helping other people make their arguments.

There is useful discussion about the role of the Guardian in the case of MW and Hertfordshire County Council in 2014. Two people who were intervening in a case were not native English speakers and did not have any legal representation. There was a suggestion that for litigants in this position, the Guardian should act as ‘an advocate for the court’ and help the litigants in person make their case. The court very firmly rejected this:

21.The children’s guardian is not a “neutral” party or participant. When appointed under the Family Procedure Rules (“FPR”) 16.3, as here, the children’s guardian has a duty to safeguard the interests of the child and to present an independent view of the best interests of the child. Practice Direction (“PD”) 16A 6.2 requires the children’s guardian to appoint a solicitor and instruct the solicitor on “all matters relevant to the interests of the child arising in the course of the proceedings” unless the child, being of sufficient understanding instructs a solicitor on their own behalf. FPR 16.29 specifically provides that a solicitor appointed by the children’s guardian must act in accordance with their instructions unless in conflict with the child’s instructions, if that child has sufficient understanding to give instructions on their own behalf, or in the absence of either in furtherance of the best interests of the child. Whilst FPR16.20 (2) requires the children’s guardian “must also provide the court with such other assistance as it may require”, quite clearly a court should never request assistance which renders the children’s guardian or their legal representative effectively engaging in advocacy on behalf of a party or witness whose position creates an actual or perceived conflict of interest with that of the child.

22. This court has been invited by Mr Samuel to issue guidance in the light of increasing numbers of litigants in person in family cases refused access to public funding. I would decline to do so beyond repeating the caution urged in paragraph 18 above, reminding advocates of their duties of fair play and squashing any lingering notion that the children’s guardian’s exercise of duties in the advice tendered to the court, service of documentation and inspection of records in accordance with PD 16A, 6.5 to 6.10 establishes them as an advocate to the court.

The importance of good analysis

It is very important, particularly if the LA is asking the court to make an adoption order, that the guardian considers carefully all the realistic options available to the child and considers both the positives and negatives about the parents’ case. See Re B-S (Children) 2013.

The welfare checklists

The Children Act 1989 checklist

Part of the guardian’s analysis should include consideration of the relevant ‘checklists’. In care proceedings, the guardian must have regard to  section 1(3)(a) to (f) of the 1989 Act which sets out ‘the welfare checklist’. The guardian has to consider:

(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) his physical, emotional and educational needs;
(c) the likely effect on him of any change in his circumstances;
(d) his age, sex, background and any characteristics of his which the court considers relevant;
(e )any harm which he has suffered or is at risk of suffering;
(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
(g) the range of powers available to the court under this Act in the proceedings in question.

The Adoption and Children Act 2002 checklist

When the guardian is considering placement or adoption orders, the guardian must consider a similar checklist in section 1(4)(a) to (f) of the 2002 Act as if for the word ‘court’ in that section there were substituted the words ‘children’s guardian’.

(a )the child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding),
(b) the child’s particular needs,
(c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,
(d) the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant,
(e) any harm (within the meaning of the Children Act 1989 (c. 41)) which the child has suffered or is at risk of suffering,
(f) the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including—

(i) the likelihood of any such relationship continuing and the value to the child of its doing so,
(ii) the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs,
(iii) the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.

The Direct Involvement of the Child

What if a child doesn’t agree with the views of the guardian?

If the child is old enough and has a good enough understanding of what the proceedings are all about, he can chose to be represented by his own solicitor. The guardian should be alert to the possibility that an older child may not agree with the guardian’s recommendations, and may wish to give his own instructions to the solicitor.

A child can also speak to a Judge directly. We deal with these issues in another post – The direct involvement of children in court proceedings.

Here is a useful article about involving children in family proceedings – how and why. 

 

Proportionality and Article 8 of the ECHR

What does this mean? And why is it important?

to protect individuals against arbitrary interference by public authorities

 

The European Convention and the Human Rights Act 1998

‘Proportionality’ is the key concept to understanding how family law operates.  This comes from Article 8 of the European Convention on Human Rights and Fundamental Freedoms (ECHR).

The Convention is protected by the European Court of Human Rights, which was established in 1959. For a useful introduction to the ECHR see this infographic from Rights Info which discusses the basic structure of the European Court, who it protects and why it matters. For further information and discussion about the scope of Article 8, see the ECHR on-line site. You can get the form to make an application to the European Court and read the guide on how to make the application. 

Prior to the implementation of the  Human Rights Act 1998  (HRA), if you were complaining about a breach of the ECHR, you had to apply directly to the European Court in Strasbourg. Now, the HRA allows the ECHR to take ‘direct effect’ in domestic legislation.

Section 6 of the HRA and makes it clear that ‘public authorities’ – which includes local authorities who want to make applications for care orders – cannot act in a way which is incompatible with the ECHR, unless they are following statute law which they can’t interpret in a way to make it compatible.

If a Judge agrees that statute law is incompatible with the ECHR, he or she can make a ‘declaration of incompatibility’ which means the Government will have to think seriously about amending that statute.

For useful discussion about how Parliament in the UK and the European Court interact, see this discussion from the House of Commons Library blog about parliamentary sovereignty and the European Convention.  

There has been much recent debate about whether or not the UK should keep the Human Rights Act; the perception of some is that we are subject to excessive interference from Europe in the way we want to manage our country. The fears of excessive interference are not reflected by the number of times the UK has been subject to criticism in the European Court of Human Rights. The House of Commons blog says:

Since the Court of Human Rights was established in 1959, it has delivered around 17,000 judgments. Nearly half of these concerned five Member States (Turkey, Italy, the Russian Federation, Poland and Romania) … from 1959 to 2013, (and in purely numerical terms) the UK was responsible for 2.96% of the total violations found by the court (compared to Turkey who has been the worst offender, responsible for 17.75%).

A note of caution – disappearance of ‘human rights’ from the ‘Working Together’ guidance.

‘Working Together to Safeguard Children’ is very important government guidance for all professionals in this field. It was first published in 1999. The 2010 edition contained useful and explicit mention of human rights and reminded professionals that data protection principles often engaged individual human rights.

However, some commentators have noted with concern that the most recent edition of the guidance contains only one reference to ‘data protection’ and no reference whatsoever to ‘human rights’. There is legitimate concern that the boundary is becoming blurred between children who are ‘in need’ and require help and children who are ‘at risk’ and require protection and the ‘air brushing’ out of any reference to human rights in the guidance is thus regrettable.

As Allan Norman comments:

If social workers stop caring about human rights, isn’t that like doctors stopping caring about health or lawyers about justice?

Article 8 – Right to respect for private and family life

The two most frequently encountered Articles of the ECHR in care proceedings are Article 6 – the right to a fair trial – and Article 8. There is clearly some overlap between the two – if your right to a fair trial is compromised in care proceedings, this may have implications for your family life.

Article 8 provides:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Therefore, we can see that Article 8 rights are not ‘absolute’ but can be over ruled when:

  • it is lawful to do so;
  • it is necessary to do so, for example, to protect health or morals.

 

The ambit of Article 8 rights

In Pretty v UK (2002) 35 EHRR 1 at paragraph 61 the ECtHR made the following comment about the ambit of Article 8:

As the Court has had previous occasion to remark, the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of the person. It can sometimes embrace aspects of an individual’s physical and social identity. Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by Article 8. Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world. Though no previous case has established any such right to self determination as being contained in Article 8 of the Convention, the Court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees.

With regard to the ambit of ‘family life’ Article 8 covers:

Article 8 ECHR provides that everyone has the right to respect for family life. The European Court of Human Rights interprets the term ‘family life’ autonomously. Forms of cohabitation or personal relationships which are not recognized as falling in the ambit of ‘family life’ in the jurisdiction of a contracting state can still enjoy protection by article 8; family life is not confined to legally acknowledged relationships. The Court is led by social, emotional and biological factors rather than legal considerations when assessing whether a relationship is to be considered as ‘family life’.

How do we decide if Article 8 rights should be over-ruled in a particular case?

This is where proportionality comes into play. It cannot be ‘necessary’ to breach someone’s rights if they way you propose to breach them is well in excess of what is needed to prevent harmful consequences.

For example, in some cases, there are worries that a parent is finding it hard to cope at home and this is having a bad impact on the children. The LA are considering care proceedings, but family and friends offer to help. In those circumstances it probably would not be ‘proportionate’ to demand that this parent give up his or her children for adoption or even  have the children go to live with foster carers for a short time.

A more proportionate response would be for everyone to meet and discuss what they could do to keep the children safe at home.

However, if a child is seriously injured at home and his parents can’t or won’t say what happened, then it probably will be proportionate to remove the child immediately from his parents’ care. 

See our post on interim removals and emergency protection orders.

The issue of proportionality was discussed by the Supreme Court in Re B in 2013 when considering an appeal against the trial judge’s decision that it was proportionate to remove a child for adoption.

115. Into all of this discussion, however, must come the question of proportionality. Significantly different considerations are in play when the proportionality of the decision is in issue. A decision as to whether a particular outcome is proportionate involves asking oneself, is it really necessary. That question cannot be answered by saying that someone else with whose judgment I am reluctant to interfere, or whose judgment can be defended, has decided that it is necessary. It requires the decision-maker, at whatever level the decision is made, to starkly confront the question, “is this necessary”. If an appellate court decides that it would not have concluded that it was necessary, even though it can understand the reasons that the first instance court believed it to be so, or if it considered that the decision of the lower court was perfectly tenable, it cannot say that the decision was proportionate.

For an example of a case where the Court of Appeal thought removing children was not a proportionate response, see K (Children) [2014].

 

Is the Children Act 1989 compatible with Article 8 of the ECHR?

Short answer – yes. For a recent example of when the UK was challenged by Latvia over the legitimacy of its care proceedings, see this post. 

When the Human Rights Act came into force, there was a lot of interest in testing the Children Act 1989 to see if it was compatible with the ECHR.

One challenge was to the fact that once  a care order is made, it is up to the LA to decide how to make it work and the court does not have any power to interfere with those decisions. The House of Lords (as they were then called; they are now the Supreme Court) considered whether or not this was compatible with Article 8 in the case of In re S [2002] UKHL 10. The lawyers argued that the court should continue to oversee what the LA was doing by way of ‘starred care plans’ – which identified issues in the care plan which should be kept under review and brought back to court if necessary.

The House of Lords rejected that argument and held that introducing this new supervisory role for the courts would go far beyond simply ‘interpreting’ the Children Act; it would be introducing a new role for the courts and only Parliament had the power to do that. To entrust a local authority with the sole responsibility for a child’s care, once the ‘significant harm’ threshold has been established, is not of itself an infringement of article 8.

53. The essential purpose of this article is to protect individuals against arbitrary interference by public authorities. In addition to this negative obligation there are positive obligations inherent in an effective concept of ‘respect’ for family life: see Marckx v Belgium (1979) 2 EHRR 330, 342, paragraph 31. In both contexts a fair balance has to be struck between the competing interests of the individual and the community as a whole: see Hokkanen v Finland (1994) 19 EHRR 139, 168-169, paragraph 55.

54. Clearly, if matters go seriously awry, the manner in which a local authority discharges its parental responsibilities to a child in its care may violate the rights of the child or his parents under this article. The local authority’s intervention in the life of the child, justified at the outset when the care order was made, may cease to be justifiable under article 8(2). Sedley LJ pointed out that a care order from which no good is coming cannot sensibly be said to be pursuing a legitimate aim. A care order which keeps a child away from his family for purposes which, as time goes by, are not being realised will sooner or later become a disproportionate interference with the child’s primary article 8 rights: see paragraph 45 of his judgment.

55. Further, the local authority’s decision making process must be conducted fairly and so as to afford due respect to the interests protected by article 8. For instance, the parents should be involved to a degree which is sufficient to provide adequate protection for their interests: W v United Kingdom (1987) 10 EHRR 29, 49-50, paragraphs 62-64.

56. However, the possibility that something may go wrong with the local authority’s discharge of its parental responsibilities or its decision making processes, and that this would be a violation of article 8 so far as the child or parent is concerned, does not mean that the legislation itself is incompatible, or inconsistent, with article 8. The Children Act imposes on a local authority looking after a child the duty to safeguard and promote the child’s welfare. Before making any decision with respect to such a child the authority must, so far as reasonably practicable, ascertain the wishes and feelings of the child and his parents: section 22. Section 26 provides for periodic case reviews by the authority, including obtaining the views of parents and children. One of the required reviews is that every six months the local authority must actively consider whether it should apply to the court for a discharge of the care order: see the Review of Children’s Cases Regulations 1991 (SI 1991 No. 895). Every local authority must also establish a procedure for considering representations, including complaints, made to it by any child who is being looked after by it, or by his parents, about the discharge by the authority of its parental responsibilities for the child.

57. If an authority duly carries out these statutory duties, in the ordinary course there should be no question of infringement by the local authority of the article 8 rights of the child or his parents. Questions of infringement are only likely to arise if a local authority fails properly to discharge its statutory responsibilities. Infringement which then occurs is not brought about, in any meaningful sense, by the Children Act. Quite the reverse. Far from the infringement being compelled, or even countenanced, by the provisions of the Children Act, the infringement flows from the local authority’s failure to comply with its obligations under the Act. True, it is the Children Act which entrusts responsibility for the child’s care to the local authority. But that is not inconsistent with article 8. Local authorities are responsible public authorities, with considerable experience in this field. Entrusting a local authority with the sole responsibility for a child’s care, once the ‘significant harm’ threshold has been established, is not of itself an infringement of article 8. There is no suggestion in the Strasbourg jurisprudence that absence of court supervision of a local authority’s discharge of its parental responsibilities is itself an infringement of article 8.

Reforms following this decision

However, although the House of Lords rejected the idea of ‘starred care plans’, they were troubled by the absence of any identified individual who would oversee and intervene if a LA were not offering good enough care to children after the court hearing was over. This could be particularly serious if a child had no parent who was willing or able to make complaints on their behalf and could lead to an infringement of the child’s human rights.

Lord Nicholls said at paragraph 106:

I must finally make an observation of a general character. In this speech I have sought to explain my reasons for rejecting the Court of Appeal’s initiative over starred milestones. I cannot stress too strongly that the rejection of this innovation on legal grounds must not obscure the pressing need for the Government to attend to the serious practical and legal problems identified by the Court of Appeal or mentioned by me. One of the questions needing urgent consideration is whether some degree of court supervision of local authorities’ discharge of their parental responsibilities would bring about an overall improvement in the quality of child care provided by local authorities. Answering this question calls for a wider examination than can be undertaken by a court. The judgments of the Court of Appeal in the present case have performed a valuable service in highlighting the need for such an examination to be conducted without delay.

The Independent Reviewing Officer

The Government responded with Section 118 of the Adoption and Children Act 2002 which amended section 26 of the Children Act 1989 and established the role of Independent Reviewing Officer (IRO).

The job of the IRO is to improve outcomes for looked after children by reviewing each child’s care plan and ensure that the child’s wishes and feelings are considered. They must:

  • monitor the local authority’s performance of their functions in relation to the child’s case
  • participate in any review of the child’s case
  • ensure that any ascertained wishes and feelings of the child concerning the case are given due consideration by the appropriate authority
  • perform any other function which is prescribed in regulations.
  • promote the voice of the child
  • ensure that plans for looked after children are based on a detailed and informed assessment, are up-to-date, effective and provide a real and genuine response to each child’s needs
  • identify any gaps in the assessment process or provision of service
  • making sure that the child understands how an advocate could help and his/her entitlement to one
  • offer a safeguard to prevent any ‘drift’ in care planning for looked after children and the delivery of services to them
  • monitor the activity of the responsible authority as a corporate parent in ensuring that care plans have given proper consideration and weight to the child’s wishes and feelings and that, where appropriate, the child fully understands the implications of any changes made to his/her care plan.

See our post about the role of the Independent Reviewing Officer for more information. 

 

Further reading/listening

June 2016 – Podcast from barrister David Bedingfield of 4 Paper Buildings ‘Proportionality and Public Law Children Cases’.