Author Archives: Sarah Phillimore

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’. 

 

 

 

 

 

 

 

What do court orders look like?

The Case Management Order

Here is the template for the new Case Management Order.

This is the order made at the Case Management Hearing which should happen in the first two weeks after the LA makes an application to the court for a care or supervision order.

You may be interested in this post about interim care orders which explains the different stages in care proceedings.

You can see it is quite complicated but not everything in this order will apply to every case; some are more complicated than others.  Your case may not require an expert for example, so paragraph 16 wouldn’t be relevant. If cases are very complex, you may need additional Case Management Hearings, but the court will be keen to limit this in order to try to get cases completed within 26 weeks.

 

Template for Order

In the Family Court sitting at [place]        [Case No          ]

[specify if Family Drug and Alcohol Court ]

 

The Children Act 1989

The Adoption and Children Act 2002

The Family Law Act 1996

[delete as appropriate]

 

THE CHILDREN

Please add a separate sheet if more than 4 children

Child [name]; gender [male/female]; d.o.b [DD/MM/YYYY]

 

 [DRAFT] Case Management Order no [sequential number in these proceedings][insert date]

1. THE PARTIES

The applicant local authority is [name]

The first respondent (mother) is [name]

The second respondent (father/father of ……………………………) is [name]

The third respondent(s) is/are (the children) by their children’s guardian [name]

[The first intervenor is[state relationship to child(ren) or other party] is [name]]

 

2 THE CHILD(REN) ARE LIVING WITH

[Name(s)       ][**Placement]

[use appropriate code for each placement]

[list children separately if different placements]

 

3. THE REPRESENTATIVES AT THIS HEARING

The parties are represented as follows

a) The applicant is represented by [name of counsel/solicitor/advocate], their contact details being [telephone and email address].

b) The 1st respondent is represented by [name of counsel/solicitor/advocate], their contact details being [telephone and email address].

c) The 2nd respondent is represented by [name of counsel/solicitor/advocate], their contact details being [telephone and email address].

d) The 3rd respondent is represented by [name of counsel/solicitor/advocate], their contact details being [telephone and email address].

e) Other [specify] is represented by [name of counsel/solicitor/advocate], their contact details being [telephone and email address].

And the following parties are in person

[name], their contact details being [contact details].

The identity of the children and those named in paragraphs 1 and 2 are not to be disclosed in public without the permission of the court.

 

4.  ALLOCATION

The proceedings are today/continue to be allocated to Mr(s) Justice [name]/HHJ [sitting as a s.9 judge][name]/District Judge [name] /AJC [name]

 

  1. THE APPLICATION(S)

a) The local authority has applied for a care order/supervision order/other Part 4 order [specify] today/on date]

b)[other applications]

c)The [state party] has applied for [                  ] [today/on date]

 

  1. JURISDICTION

The court is satisfied that it has jurisdiction in relation to the child/ren [give reasons, eg. based on habitual residence]

[or]

(a)   There is an issue as to jurisdiction in respect of the children and consideration needs to be given to this issue [and the application of Council Regulation (EC) No 2201/2003 (Brussels 2 Revised)] to these proceedings by the parties as a matter of urgency; and

(b)   The local authority shall liaise with the [identify country] consular authority in England and Wales or other competent authority in [name of foreign state] in relation to the proceedings or make a request to the Central Authority of [identify country] for such information as may be relevant to determine issues of jurisdiction.

 

  1. TODAY’S HEARING

a). Today’s case was listed for: [                   **]

b). Today’s hearing has been [tick one]

o         EFFECTIVE

o         CANCELLED-NOT TO BE RELISTED

o         RE-LISTED AND DELAYED The main reason why the hearing has been re-listed and delayed is: [                      **]

o         ADJOURNED The main reason why the hearing has been adjourned is: [    **]

 

  1. THE TIMETABLE FOR THE PROCEEDINGS

[see in the matter of Re S a Child 16th April 2014]

The timetable for the proceedings is 26 weeks

[or]

The proceedings cannot be completed within 26 weeks, but are to be completed within [    ] weeks or by [date] for the following reason [tick one]

o         (i) It is necessary to extend the timetable for the proceedings beyond 26 weeks in order to resolve the proceedings justly because: [specify reason, eg. very heavy cases involving the most complex medical evidence where a separate fact-finding hearing is directed, FDAC type case, cases with an international element where investigations or assessments have to be carried out abroad, cases where the parent’s disabilities require recourse to special assessments or measures.]

o       (ii) Despite robust and vigorous case management, the nature of the proceedings has changed and it is necessary to extend the timetable for the proceedings for one or more of the children in order to resolve the proceedings justly because: [specify reason, eg.

            cases proceeding on allegations of neglect or emotional harm where allegations of sexual abuse subsequently surface, cases which are unexpectedly ‘derailed’ because of the death, serious illness or imprisonment of the proposed carer, cases where a realistic alternative family carer emerges late in the day]

o         (iii)The progress of the case has been delayed because of the litigation failure on behalf of one or more of the parties and it is necessary to extend the timetable for the proceedings in order to resolve the proceedings justly because:[specify reason: ]

AND in each of the above cases, the impact on the welfare of the children of extending the proceedings is [state impact             ]

The next hearing is a [  **] on [date and time] at [ place                               ]

with a time estimate of [                     ]

 

  1.    TIMETABLE FOR THE CHILD(REN)

The key dates and events in the Timetable for the Child(ren) are:

Child [name]; Event/Permanent placement [specify]; Date [specify]

Child [name]; Event/Permanent placement [specify]; Date [specify]

Child [name]; Event/Permanent placement [specify]; Date [specify]

 

10. THRESHOLD See our post on threshold criteria

The s.31 threshold for the making of orders is agreed/in dispute/in dispute subject to concessions which have been made. [the threshold agreement/the threshold concessions is/are annexed to this order].

 

  1. THE KEY ISSUES IN THE CASE ARE:

a)[e.g. What significant harm has the child suffered or been at risk of suffering?]

b)[e.g. What are the identified welfare needs of the child?]

c)[e.g. Does either the mother or the father have the capability to meet the child’s needs?]

d)[       other                ]

 

 

12. THE PARTIES’ POSITIONS:

a) [e.g. The local authority has concluded ………….]

b) [e.g. The mother disputes…………..]

c) [e.g. The father has now…………]

d) [e.g. The children’s guardian supports the ……..]

 

13. IDENTIFICATION OF PERSON(S) TO BE ASSESSED AS POTENTIAL ALTERNATIVE CARER(S)

a) The parents have identified all family members they wish to be assessed and the court has explained to them that any persons identified by them in the future may not be assessed due to the delay not being consistent with the timetable for the child.

b)The person(s) identified by the mother are [name(s)]

c)The person(s) identified by the father are [name(s)]

d) [other]                                                         [name(s)]

 

14. EVIDENCE

After reading the materials filed, which are described in an index/record of hearing

 

THE COURT ORDERS

You will put in here any particular orders about people providing statements or other evidence.  

 

  1. In the interim, [Name of child/ren] is/are placed in the care of /under the supervision of [name of local authority] until the finalisation of the proceedings or further order.

 

16. EXPERTS

a) An application [was][was not] today made for the instruction of an expert. and the application [was][was not] granted.

b) The type of expert whose instruction was [allowed][refused] by the court [is** ]

c) The date by which the report is due is:

d) The report of an expert is necessary to assist the court to resolve the proceedings because [specify reason] and the impact on the welfare of the child is [describe impact]                                  ]

[Repeat if more than one expert]

 

  1. OTHER ORDERS

[for example:]

Reallocation

Joinder of additional party/ies

Assessment of others

Consideration of how the child(ren)’s views should be communicated to the court

Special measures/interpreters/intermediaries

Disclosure

Paternity/drug/alcohol testing

Timetable for evidence to be filed including the care plan

Further case analysis

Directions for proposed concurrent placement order proceedings

Disclosure to the Independent Reviewing Officer

Making Interim Care Orders and their duration

Contact

Advocates’ meetings and preparation for the next hearing

Bundles

[use standard clauses where available locally and put directions in chronological order]

 

18. COMPLIANCE

No document other than a document specified in this order or filed in accordance with the Rules or any Practice Direction shall be filed by any party without the court’s permission.

 

  1. Any application to vary this order or for any other order is to be made to the allocated judge on notice to all parties.

 

20. All parties must immediately inform the allocated judge and the court if any party or person fails to comply with any part of this order.

 

21. CASE OUTCOME [to be completed only if proceedings are finally disposed of at a Case Management/Issues Resolution Hearing]

A [set out type of order]was made today in respect of[name of child          ]

 

Court address: for filing/communication

 

 

1. Type of Placement [for paragraph 2]

Type of Placement for children
Not removed– At home
Not removed– In RPaCA placement (a residential assessment with parent)
Not removed– In community placement
Removed- To kinship placement
Removed- To foster care
Removed- To potential adoptive placement
Reunification- Assessment placement with parent
Reunification- Assessment placement with kinship placement
Complex needs- In a specialist placement including hospital

 

 

2. Type of Hearing [for paragraph 7 and paragraph 8]

PLO Stage
Urgent Case Management Hearing
Case Management Hearing (CMH) Other – Fact Finding
Further Case Management Hearing (FCMH) Other – Directions not part of PLO
Issues Resolution Hearing (IRH) Other – Contested Interim Care Hearing
Final Hearing (FH) Other – s38(6))

 

 

3. Reasons for Adjournment [for paragraph 7]

Please list the ONE reason which best explains why the hearing has been adjourned.

                                               Reason for Adjourned Hearing
Local Authority LA1 – No/poor pre-proceedings preparation by LA, other than social work assessment of the family

LA2 – No friends/family identified before the hearing by LA
LA3 – No/poor kinship assessments by LA
LA4 – No expert instructed by LA
LA5 – No/poor/late social work assessment of the family by LA
LA6 – New social work report/assessment required following a change in circumstances
LA7 – No timetable for the child
LA8 – No/poor/late/new/care plan
LA9 – Placement order proceedings delay
LA10 – No/poor placement evidence by LA
LA11 – No threshold set out in the application form

CAFCASS

.

CA1 – CAFCASS not allocated/present
CA2 – No/poor CAFCASS analysis
Other Parties LW1 – Lawyers not instructed, present or ready, party or witness fails to attend
LW2 – No key issue analysis
LW3 – No/poor parental evidence or parental non-compliance
HMCTS HM1 – No courtroom available
HM2 – No special measures
HM3 – Interpreter or intermediary not available
Judiciary JU1 – Lack of judicial continuity
JU2 – Insufficient time listed  to complete hearing
LAA LS1 – Prior authority from LAA not available
LS2 – Other legal aid
 problem
Official Solicitor OS1 – Official Solicitor not instructed/ready
Experts EX1 – Late expert report/assessment/ Poor expert report/assessment
EX2 – New expert report/assessment required following a change in circumstances
Health HE1 – No/poor medical records etc from other agency
Crime CR1 – Police/CPS disclosure/documents incomplete/not available
Other OT1 – Case reallocated or moved to a different  judge at a different location
OT2 – Need for an interim contested hearing
OT3 – Other non compliance with directions
OT4 – Consolidation with other family proceedings
OT5 – Parallel proceedings
OT6 – New baby/pregnancy
OT7 – New Party joined
OT8 – Immigration and international difficulties
OT9 – Severe weather
OT10 – Industrial action

 

 

  1. Instruction of Expert [for paragraph 16]

Please list all that apply.

 

Expert Code 
A – Paediatrician E – Multi-Disciplinary Assessment Psychological ReportJ1 – Clinical – Child(ren) onlyJ2 – Educational – Child(ren) onlyJ3 – Parent(s) only

J4 – Parent(s) and Child(ren)
B – Paediatric Radiologist F – Independent Social Worker
C – Other Medical Report G  – Paediatrician (now removed)
Family Centre Assessment (Parenting Skills):D1 – ResidentialD2 –Non-Residential Psychiatric Report:H1 – Parent(s) aloneH2 – Child(ren) and Parent(s) / carer(s)H3 – Psychiatric Report – Child(ren) alone
K – Other Expert Report

 

 

 

 

 

 

What is Attachment Theory? Why is it important?

Attachment is a theory about danger and how we organize in the face of it

Crittenden and Clausson 2000

We hear a lot about ‘attachment’ and its important in care proceedings.

Basically ‘attachment’ is a theory developed by psychologists to explain how a child interacts with the adults looking after him or her. If a child has a healthy attachment, this means the child can be confident that the adults will respond to the child’s needs, for example if he is hungry, tired or frightened, the adult caregiver will respond to meet his needs or reassure and comfort him.

This gives the child confidence to explore his environment and develop a good sense of self-esteem. This will help the child grow up to be a happy and functioning adult.

If a child can’t rely on his carers to look after him and respond consistently, this has been noted to have potentially very serious and damaging consequences for the adult that child will become. If adults are seriously inconsistent or unresponsive in their behaviour to the child, he may become very anxious as he is not able to predict how the adults around him will act; the child may even give up trying to get his needs met.

Therefore, identifying how a child responds to the adults trying to look after him, can be very important information when you are trying to work out what is the best thing to do for that child. If the attachment relationship is very poor and there are worries it won’t improve quickly enough for the child then this may have a significant influence on any decision to remove the child from those adult carers.

The National Institute for Health and Care Excellence (NICE) described ‘attachment’ in this way in their November 2015 guidelines regarding children’s attachment:

Children whose caregivers respond sensitively to the child’s needs at times of distress and fear in infancy and early childhood develop secure attachments to their primary caregivers. These children can also use their caregivers as a secure base from which to explore their environment. They have better outcomes than non-securely attached children in social and emotional development, educational achievement and mental health. Early attachment relations are thought to be crucial for later social relationships and for the development of capacities for emotional and stress regulation, self-control and metallisation…

Where did attachment theory come from?

John Bowlby

The psychoanalyst John Bowlby (1907 – 1990) investigated how what happened to us as children could contribute to later problems as adults  – in the way we behave and interact with other people.

He developed the concept of a ‘theory of attachment’, suggesting that we are born pre-programmed to form attachments to others, as without this babies could not survive. This followed on from the work of Lorenz in 1935 where he investigated ‘imprinting’ in ducklings and geese and showed that the birds would attach to the first large moving object they met in the first few hours of life.

Mary Ainsworth

Attachment theory was further developed by Mary Ainsworth (1913 – 1999) and her assessment technique called the Strange Situation Classification (SSC). Babies and toddlers can’t use words to tell us how they feel so Mary Ainsworth needed to find a way to allow them to show her.

Children were observed through a one-way mirror and the researchers noted the children’s reactions in a range of different circumstances.

  • Parent and infant alone.
  • Stranger joins parent and infant.
  • Parent leaves infant and stranger alone.
  • Parent returns and stranger leaves.
  • Parent leaves; infant left completely alone.
  • Stranger returns.
  • Parent returns and stranger leaves.
This allowed four different categories of behaviour to be investigated:
  • Separation anxiety – what does the child do when the caregiver leaves?
  • Willingness to explore – was the child confident to explore his environment?
  • Stranger anxiety – how did the child react to the stranger?
  • Reunion behaviour – how did the child react when the carer/parent came back?
Results of the experiment.

See further this article from Simply Psychology

She identified three main attachment styles

  • Secure
  • Insecure avoidant
  • Insecure ambivalent.

A fourth attachment style has since been identified as ‘disorganized’.

The majority of the children were ‘secure’.

  Secure Attachment Ambivalent Attachment Avoidant Attachment
Separation Anxiety Distressed when mother leaves. Infant shows signs of intense distress when mother leaves. Infant shows no sign of distress when mother leaves.
Stranger Anxiety Avoidant of stranger when alone but friendly when mother present. Infant avoids the stranger – shows fear of stranger. Infant is okay with the stranger and plays normally when stranger is present.
Reunion behavior Positive and happy when mother returns. Child approaches mother but resists contact, may even push her away. Infant shows little interest when mother returns.
Other Will use the mother as a safe base to explore their environment. Infant cries more and explores less than the other 2 types. Mother and stranger are able to comfort infant equally well.
% of infants 70 15 15

Why is attachment theory so important in some court proceedings?

There is clearly room for debate about how attachment should be measured and what implications this has for trying to support families in crisis.

However, attachment theory will remain significant in care proceedings because of the large degree of expert consensus about why it is important. This is primarily because good attachment allows us to develop a well functioning internal working model. This is:

a cognitive framework comprising mental representations for understanding the world, self and others.  A person’s interaction with others is guided by memories and expectations from their internal model which influence and help evaluate their contact with others (Bretherton, & Munholland, 1999).

Having a healthy ‘internal working model’ is thus important for three main reasons

  • Your sense of self
  • Your sense of others
  • Your relationships with yourself and others

Research shows that attachment problems can have a big impact on later life. Attachment difficulties account for a significant percentage of reasons why adoptions break down for e.g.

Children who are securely attached can develop increasing independence, exploring their environment with confidence that they can return to a carer who will respond to their needs. Therefore securely attached children will develop good self esteem and know that they are considered worth looking after.

However, children who don’t get the chance to form good attachments run the risk of developing poor internal working models which can have very negative impacts on their view of themselves and their ability to form relationships with other people. John Bowlby was worried that the long-term impacts included increased aggression and even ‘affectionless psychopathy’ where a person cannot show affection or concern for others.

Some concerns about attachment theory

The Sutton Trust have estimated that 40% of the general population do NOT have secure attachments (see ‘Baby bonds: parenting, attachment and a secure base for children’). This claim, and the evidence cited to support it,  has caused some disquiet amongst academics.

There are criticisms of Mary Ainsworth’s experiments, not least the fact that her work is based on the assumption that  brief separations and reunions have the same meaning for all children, which may not give proper consideration to cultures where it is accepted that children will experience everyday  maternal separation.  See further ‘Clinical Implications of Attachment Concepts: Retrospect and Prospect’ Michael Rutter 2005.

Nicola Horsley, the research fellow of the Brain Science and Early Intervention Project at Southampton University comments:

Bandying about this figure of forty percent of the population not being securely attached, with the original source so deeply buried, is disingenuous enough. The Brain Science and Early Intervention study, funded by the Faraday Institute and conducted by researchers at the Weeks Centre and the University of Southampton is particularly concerned with how claims like these are being beefed up by ‘evidence’ from neuroscience, as in the Baby Bonds report’s section on ‘neurological pathways’ to developing secure attachment.

You might expect a claim like ‘there is a burst of brain development when attachment bonds are made’ to cite a neuroscientist but the reference supporting this quote is the work of Sue Gerhardt, a psychotherapist who is one of the founders of the OXPIP parenting programme; and her book Why Love Matters: how affection builds a baby’s brain, is core reading for practitioners delivering the programme. The Baby Bonds report features only one neuroscientist in its bibliography and that is Jack Shonkoff, director of the Harvard Center on the Developing Child, which is a partner of the UK’s Early Intervention Foundation. Increasingly, third sector organisations like the Early Intervention Foundation and ‘strategic philanthropists’ like the Sutton Trust, and not rigorous up-to-date studies or neuroscientific thinking, are providing the ‘evidence’ on which policy is based.

In selecting the research that is presented to policy makers, reports like Baby Bonds have the power to privilege certain agendas. It is crucial that their key messages are not based on distortions or misrepresentations of social life. If family policy is to deny the fundamental opposition to attachment theory feminists have articulated for at least twenty years, it should at least be cognisant of critiques of the highly questionable measurements of attachment.

From the conflation of a dyadic relationship with an individual characteristic to the cherry-picking of psychological or biological terms depending on which makes the most compelling case, attempts to measure the quality of human relationships in this way are profoundly flawed.

Through the Brain Science and Early Intervention project, I have witnessed the effects of this discourse on practitioners who work with parents in need of support and these sloppy attributions of good and bad models of parenting have the potential to do real harm with their individualisation of risk factors for a panoply of social ills.

If the UK government is serious about investing in policy and practice that encourages children to flourish, its focus on deprivation should not be narrowed to the prefix of the maternal. When nurses tell us that they are under pressure for their delivery of a parenting programme to be seen to have a direct effect on future prison populations, it is clear that family life has become atomised beyond all recognition. We are left with a science of parenting where family support used to be and this can only serve to further isolate those who are consigned to the 40%.

GM v Carmarthenshire County Council & Anor [2018] EWFC 36 (06 June 2018) – now no longer good law!

This case makes for interesting reading regarding the judge’s comments about attachment. The case involved an 8 year old boy who had been in foster care for 2 years and his mother wanted to discharge the care order and have him return home. The court approved a report by an Independent Social Worker to report on the child’s attachment. The Judge made the following comments.

  1. A number of points may be made about this description of the theory. First, the theory, which I suppose is an aspect of psychology, is not stated in the report to be the subject of any specific recognised body of expertise governed by recognised standards and rules of conduct. Indeed, I asked the advocate for the guardian whether he was aware whether a student could undertake a degree in attachment theory, or otherwise study it at university or professionally. Mr Hussell was not able to answer my question. Therefore, it does not satisfy the first criterion for admissibility as expert evidence.

  2. Second, the theory is only a theory. It might be regarded as a statement of the obvious, namely that primate infants develop attachments to familiar caregivers as a result of evolutionary pressures, since attachment behaviour would facilitate the infant’s survival in the face of dangers such as predation or exposure to the elements. Certainly, this was the view of John Bowlby, the psychologist, psychiatrist, and psychoanalyst and originator of the theory in the 1960s. It might be thought to be obvious that the better the quality of the care given by the primary caregiver the better the chance of the recipient of that care forming stable relationships later in life. However, it must also be recognised that some people who have received highly abusive care in childhood have developed into completely well-adjusted adults. Further, the central premise of the theory – that quality attachments depend on quality care from a primary caregiver – begins to fall down when you consider that plenty of children are brought up collectively (whether in a boarding school, a kibbutz or a village in Africa) and yet develop into perfectly normal and well-adjusted adults.

  3. For my part I would say with all due respect that I do not need a social worker to give me evidence based on this theory to help me form a judgment about L’s attachments.

The lawyer and legal blogger suesspicious minds commented favourably on Mostyn J’s judgment

It seems that concern was growing about the possibly inapt use of attachment, particularly by those who see it synonymous with a ‘bond’. However, in 2021 in the case of TT (Children) [2021] EWCA Civ 742 (20 May 2021)the Court of Appeal issued a stern corrective to the judgment of Mostyn J, saying

It is one thing to find that a particular witness may not be qualified to give specific evidence about a child’s attachments, but it is another thing to question the validity of attachment theory as a whole or to state that it cannot be admissible in evidence. Nor is it correct to say that, if a child’s attachment to substitute carers is so strong as to lead a court to refuse an application to discharge a care order, that would deprive s. 39 of meaning. That approach risks looking at matters from the point of view of the parent at the expense of a rounded assessment of the welfare of the child. The decisions to which I have referred in the two preceding paragraphs make clear that the court has to give appropriate weight to all the relationships that are important to a child, and that there may be a role for expert advice about attachment in cases of difficulty. Insofar as the observations in GM v Carmarthenshire suggest otherwise, they cannot stand [para 49].

How can we deal with these concerns about attachment in practice?

David Shemmings, Professor of Child Protection Research at the University of Kent sets out seven principles for using attachment – based approaches in child protection work:

  • The main aim of using attachment-based principles is to help and support families stay together, whenever it is feasible to do so.
  • People can usually change and there is, as yet, no firm evidence that there are critical periods of a child’s development after which change is impossible, except in the most extreme forms of maltreatment – although the longer we leave things, the harder it is to overcome abuse and neglect.
  • It is preferable to think of disorganized attachment behaviour, not disorganized attachment per se. (These behaviours are temporary and fleeting, not an attachment ‘style’). The behaviours are not predictive of maltreatment: they indicate that additional questions need to be posed urgently, as the child may already have experienced ‘fear without solution’.
  • Practitioners need to make sure that they are not constrained by ‘confirmation bias’: forming a viewpoint too quickly and then only taking account of information, which confirms it – we need an ‘open mind, but not an empty head’.
  • Where there are concerns, they must be shared in the family (unless doing so might harm a child).
  • Practitioners must be ‘culturally competent’ when using attachment-based principles.
  • Approaches to help families are more likely to succeed if we demonstrate enhanced relationship skills, specifically ‘intelligent kindness’, ‘unsentimental compassion’ and ‘non-directive curiosity’.

Further reading.

What’s it like to be a fostering social worker?

The social worker in the Family Placement Team

We are grateful to M. Bosch-Nevado for this insight into the challenges and frustrations of working as social worker supervising foster carers. 

 

What do I do?

There is a misconception among children’s social workers that fostering social workers don’t work that hard and just drink tea all day; I find that very annoying.

As a supervising social worker for fostering, we must build relationships with foster families; we get to know their household and their own children. We are there to support them all, although we may deal with the female foster carer more than with the male carer. We know the family well and we are in a position to comment on how a child/ren described in a referral may or may not, fit into that specific family.

We work out by the information that we are given from the duty and community teams, who the child may settle with the family, whether the carer can manage transport to school, contact for that child with their birth family and siblings and, most importantly, whether this family can meet their needs, in relation to the needs of other children placed there, ethnicity, transport, eating habits, bedroom space, etc. Sometimes colleagues will be stuck for a placement on duty, but they won’t be aware of the layout of a carer’s home. This can make the difference as to whether a child is placed with in-house carers or an independent agency.

Due to the lack of carers in the local authority, we have to place this children with private agencies at a huge costs for the local authority. I feel frustrated that agencies make money out of child protection issues. The government have a duty of care to all children and these companies should not exist. These private foster carers are motivated by money and not because they want to care and look after the most vulnerable children.

 

How do foster carers feel?

I also get to understand the frustrations that foster carers have, when working with local authorities, like when their views about a child aren’t taken on board. Some feel that they are not treated as professionals and some others complain about the multiple changes in social workers for both them and the children. One of my carers was concerned that, when she spoke to a social worker about her foster child’s wishes not to attend contact with his birth family because of the distress that it was causing him, she was told to encourage him to go and not to be silly. She explained she had done this, but the boy was adamant he didn’t want to go. The relationship between the adults became strained as the foster carers felt that the social worker was suggesting they had influenced the boy’s decision. This was a difficult for them, and for me supporting them through it.

Foster carers often feel angry that, despite being told they are professionals and part of a wider team, they are not treated as such. They feel that some social workers view foster carers as ‘glorified babysitters’ and don’t share all the appropriate information with them. How can they care for the child appropriately if they have not got all the information about the child? How can they protect, manage and support a child through the difficult times? After unsuccessful attempts to reach social workers, foster carers will often speak to the social worker’s manager or, if they feel they are being dismissed, will ask me to deal with it.

Many carers I’ve supervised become disillusioned with the system and social workers who state, during meetings and visits, that they will do things or make referrals to CAMHS, Counselling or any other agency, but then do not do it. One child had to miss a holiday due to a passport application not being completed on time, despite assurances from the social worker that it had been ‘sent off’. What is this message give to the child and the Foster Carer?

 

The pressures of the role

A colleague who joined the team recently from the duty team told me, “they think that the fostering and adoption teams do not do much, have endless cups of tea and have the perception that the social workers who enter these teams are winding down their careers”. Indeed, there weren’t many younger members of staff on that team. Thankfully, things are different in my team there is a range of workers – different ages, experiences and backgrounds.

She said that she used to think that too, but not anymore. She said that “I’ve done more weekends and late nights on this team and taken more work home with me than I had on duty”. Children’s social workers seem to lack awareness about our role; there have been many occasions where they’ve been confused by my presence at meetings.

Due to the high numbers of children coming into care, we feel pressure to complete assessments of foster carers as quickly as possible. This is difficult to manage, because of the in-depth nature of assessments and the other demands of our role: running ‘skills to foster’ training sessions, completing CWDC workbooks with carers, running support groups, duty tasks, completing initial visits and managing our own training and development, attending team meetings, event days to try to recruit more carers, often working evenings and weekends. There aren’t enough hours in the day, especially if you’re part time, like me. I wonder if there really is such a thing as a part time social worker!

It is still common to encounter incredulity from children’s social workers when you say you are very busy. I feel children’s social workers should receive more training about fostering and our role. Many will have children placed with foster carers and if they received helpful advice about what they should avoid doing and what information they should share, and with whom, there would be better relationships all around.

 

A day in in my work life looks like this

8.30am – I arrive at the office and look at my drop, to see if I have been left with any new initial visit files. I print off all the relevant paperwork for the day’s visits and a placement planning meeting. I also check and respond to any urgent emails and messages.

9:30am – I visit the home of someone who is acting as a referee for one of the foster carers I’m currently assessing.

11am – Placement planning meeting for a one year old child at the home of the foster carers. Both foster carers and a social worker from the child safeguarding team are present. No paperwork has yet been provided to the carers. As a priority, I informed the social worker that she needs to provide the foster carers with medical consent for any routine health checks or appointments the child may need.

12.45pm – I no time for lunch because I have to do all the recording in the computer about the visit to the referee, the planning meeting, and some recording that I left to do last week. I create a placement information record on the local social care system, then return calls to foster carers and social workers. I also have a chat to my manager about our upcoming disruption meeting. On a good day I make a point of trying to take a fifteen minute lunch hour, but this is a rare event.

2pm – Disruption meeting. This is a difficult process for foster carers and occurs when placements end abruptly without prior planning. In this instance, the carers asked for their foster child to be moved on. The placement had worked for several years but the carers were struggling to manage the child’s increasingly difficult offending behaviour.

4pm – I speak to the carers following the meeting to give them reassurance and support. I collect the child’s belongings they have brought to pass on to the new carers.

4.15pm – I set off to a supervisory visit with another of my foster carers. I’d have liked to catch up with my manager after the disruption meeting but I was running late.

4.45pm – Supervision visit. The carer is worried about a foster child with complex needs who has been with the family for the past seven years. The girl is now a teenager and issues around online safety, vulnerability and sexual activity are causing concern. I suggest strategies to help keep the young person safe and assure the carer that a social worker has made a referral to a family support worker who can undertake direct work with her. The young person also has ADHD and the carer is concerned about her level of concentration. I suggest speaking to a CAMHS nurse about the dosage of medication and arrange an appointment to discuss emotional health.

6.00pm – I set off home. My first appointment might be visiting a family where a child has recently moved in – most of my visits involve just a short drive When a child is first placed with an adoptive family, the support they receive is fairly intense, but as the family gel together we gradually reduce our involvement if things are going well.

7.30p – I have to go out to do an initial visit to a family that are interested in becoming foster carers. I get back home at 9.15pm, absolutely exhausted and not looking forward to tomorrow.

I don’t agree with the care order – what can I do? Appeals and Discharge of order

If you want to challenge a placement or an adoption order, have a look at where we discuss placement and adoption orders, where there is some brief discussion of your options. It is very difficult to successfully oppose these orders. There is a useful article here by suesspicious minds. 

It is probably going to be difficult to get any help with paying for legal representation to make these applications; unlike the actual care proceedings there is no automatic legal aid. You may find this post helpful; What if I don’t have a Lawyer?

What’s the difference between appealing and applying to discharge an order?

If you don’t agree with an order the court has made you basically have two options:

  • you can apply to APPEAL the order – i.e. you think it was wrong; the judge got the facts or the law wrong
  • you can apply to DISCHARGE the order – i.e. it might have been the right order at that particular time but things are different now.

I will look at appeals against the care order first, then how to apply to discharge a care order.

However, it is difficult to appeal against decisions in the family court. This because there is almost always no one single ‘right’ answer and one judge might disagree with the decision of another judge without being able to say that the first judge ‘got it wrong’.  See for example what Ward J said In Re N (Residence: Hopeless Appeals):

… It may be an irony that the more finely balanced the decision, and the more acutely the judge has agonised over his decision, the less prospect there is of the decision being successfully appealed. The understandable reaction of the disappointed party is that the judge has got it wrong; therein lies the fallacy. That fallacy was exposed by the House of Lords in G v G (Minors) (Custody Appeal) [1985] FLR 894. The fallacy is this: in a case involving the welfare of a child there is often no right answer. There cannot be an absolute of right where the choice is between two solutions, each of which is imperfect…

If you are going to embark upon an appeal you will have to be very careful to identify what the judge got wrong, rather than simply say that you don’t agree with what the judge did.

Appealing against the care order

Particular problems for litigants in person

It is difficult to get public funding to make an appeal and some people may have to consider making an application without a lawyer.  You may have to pay a fee to get the court to issue your application – there is information about this on the government website.

Also see their leaflet – Court and Tribunal Fees – Do I have to pay them?. You don’t have to pay if you are receiving the following benefits:

  • Income-based Jobseeker’s Allowance
  • Income-related Employment and Support Allowance
  • Income Support
  • Universal Credit with gross annual earnings of less than £6,000
  • State Pension Credit – Guarantee Credit
  • Scottish Civil Legal Aid (not Advice and Assistance or Advice by Way of Representation)

The courts are alive to the difficulties this may cause – see the case of  R (a Child) [2014]

  • The court office will have to make sure all the other parties know about the appeal because litigants in person do not always know who should be served
  • The bundles that the court requires in order to determine the appeal are often not provided by the litigant, or are incomplete, and proper papers have to be assembled by the court, not infrequently at the request of the judges allocated to hear the case when they embark upon their preparation for the hearing just days before it is due to start.
  • The grounds of appeal that can properly be advanced have to be identified by the judge hearing the permission application and the arguments in support of them may have to be pinpointed by the court hearing the appeal.
  • The court has no extra resources to respond to these added challenges.

Litigants in person therefore need to be aware that the papers the first judge looked at are not in front of the appeal court – they need the appellant to supply the relevant paperwork!  It may be that local authorities will have to expect to assist by ensuring that the court is provided with appeal bundles.

Three copies of the appeal bundles are normally required, unless the appeal is ordered to be heard by two judges in which case only two copies need be supplied. The bundles will often have to include the documentation that was available to the court below, although there can be appeals in which the issue is so discrete that a more limited selection of papers will suffice. It is so frequently the case that the papers supplied by the appellant are deficient that it should be standard practice for the local authority to take steps itself, well in advance of the hearing, to consider the appellant’s proposed bundle and, if it is deficient or apparently non-existent, to contact the court to see whether it is necessary to supply alternative or supplementary bundles.

Permission to appeal

You will probably have to ask for permission to appeal before any Judge will hear your arguments about the actual appeal

The test for whether permission to appeal should be granted is whether there is a real prospect of success or some other compelling reason as to why permission should be granted. (Rule 30(3) FPR 2010). A real prospect of success means one that is realistic rather than fanciful and not one which has a greater than 50/50 chance of success. Per Moor J in Av v VM [2012] 2 FLR 709. This test has been confirmed in R (A Child) [2019] EWCA Civ 895 (24 May 2019)

The decision of the Judge may only be interfered with if the Judge was wrong or if the decision was unjust due to a serious procedural or other irregularity in the court below. (Rule 30.12(3) FPR 2010.)

In NG v SG 2012 1 FLR 1211, Mostyn J said a court would only be able to say that a fact finder has got the wrong answer if a) the conclusion was demonstrably against the weight of the evidence; and b) the decision-making process can be identified as plainly defective such that it can be said that the findings in question are unsafe.

What you need to do as soon as you get the judgment

  • make minor corrections immediately
  • ask the Judge to consider any ‘material commission’
  • ask for permission and think about getting a transcript of the judgment

You need to understand what the decision is; some judges will give you a written judgment, others will read it out. Get the best note you can as sometimes there are problems/delays getting a transcript. Sometimes Judges tell you their decision at the end of a case, other times the Judge may need to get you back into court after a few days/weeks, particularly if the matter was complicated or there was a lot of evidence.

Immediately after judgment has been delivered, if there is anything you are not happy about or think the Judge has got wrong, you should bring it to his/her attention immediately. The Judge can make minor amendments there and then or provide further reasons if you are not sure why   he/she has made that decision.

It is important to raise ‘material omissions’ BEFORE making any application to appeal. The Judge should be given the opportunity to consider any such claimed commission before you rely on it as a ground of appeal. If  you don’t alert the Judge to these issues quickly, you could find yourself criticised later on – as Arden LJ said in the case of Re T (Contact: Alienation: Permission to Appeal) [2002] EWCA Civ 1736, if you don’t bring something to the judge’s attention as soon as you can, you might find yourself punished with a costs order later on. The Supreme Court held in the case of re K-L (Children) [2015] that judges have power to reverse their decisions at any time before the order is ‘drawn up’ (i.e. sealed with a court stamp). 

 If the Judge isn’t willing to make changes OR the changes made don’t reassure you, ask that Judge for permission to appeal his/her judgment. The Judge is likely to refuse but you can make another application for permission at the next court up if you do decide to appeal, and you may be criticised for not raising it with the first Judge. If you don’t have a written judgment, ask for the time limits to appeal to start running from the date that you get the transcript. Ask the Judge if he/she will order the transcript as necessary so you don’t have to pay, but if the judge doesn’t agree you need to appeal, this will probably be unlikely. The relevant form to apply for a transcript is here. 

You will need to act quickly. You have 21 days to appeal and if you go over that time you will have to show good reason why you should be given longer to appeal.  I will look at the issue of transcripts and time limits in more detail below.

Judge’s should be asked – within reason – to clarify their judgments if it is not clear what they have decided. The Court of Appeal has given guidance on what is an acceptable way to seek clarification. This is not an opportunity to get the Judge to make different findings. See YM (Care Proceedings) (Clarification of Reasons) [2024] EWCA Civ 71, 2024

Transcripts – and what to do if you don’t have one.

See paras 5.23 – 5.25 of the Practice Direction with regard to transcripts of the Judge’s decision.

All court proceedings should be recorded, although sometimes the equipment fails and there are often difficulties/delays in getting hold of the transcript. So you may need to have some other options. If you can’t get hold of a transcript within the time limits for sending your appellant’s notice to the court, you will have to complete the appellant’s notice to the best of your ability on the basis of the information that you have got in front of you. You are allowed to make amendments later on if the court gives you permission. See FPR 30.9 – Amendment of appeal notice. 

If you can’t get the transcript in time, you can use the following documents:

  • Written judgments – where a decision is made by the magistrates (‘lay justices’), they must type up the reasons for their decision.
  • Note of judgment – when judgment was not officially recorded or made in writing a note of the judgment can be submitted for approval to the judge whose decision is being appealed. Try and get your note agreed with the other side.  If the parties cannot agree on a single note of the judgment, both versions should be provided to that judge with an explanatory letter. For the purpose of an application for permission to appeal the note need not be approved by the respondent or the lower court judge.
  • Advocates’ notes of judgments. If you had a lawyer, get your lawyer’s notes; they have a professional duty to give these to you.  If you were a litigant in person but the other side(s) had a lawyer, those lawyers are under a duty to make their note of the judgment available to you, free of charge if there is no official recording or if the court tells them to. When the appellant was unrepresented in the lower court it is the duty of any advocate for the respondent to make the advocate’s note of judgment promptly available, free of charge to the appellant where there is no officially recorded judgment or if the court so directs.

Transcripts of evidence

See para 5.31 -5.34 of the Practice Direction with regard to transcripts of the evidence.

It maybe that its not just the note of judgment that you need, but also a transcript of the evidence, if there is dispute/disagreement about what the evidence actually was and what decision the judge made about it.. If there was no official recording, you will need a typed version of the Judge’s or magistrates’ clerk’s notes. If you can’t afford to pay for these notes to be transcribed the court can order that they are provided at the public expense. You should ask for this order when you ask for permission to appeal if you are worried about paying for the costs of a transcript. 

See also the case of Re W (Children) in 2014 where Jackson LJ commented:

From time to time when this court grants permission to appeal, it directs that the evidence of a particular witness be obtained. If the appeal concerns the adoption of children, it is by definition an urgent matter and the hearing will be listed at an early date. Indeed, as here, the court granting permission to appeal may direct an expedited hearing.

In such a case, the parties must use their best endeavours to obtain any transcript of evidence which is required as soon as possible. If, as here, the transcript cannot be obtained in time, then solicitors and counsel should co operate in producing a composite note of the relevant evidence.

Time limits are really important. 21 days to appeal

Appellant’s notice Rule 30.4

You must file with the court an Appellant’s Notice within 21 days from the date the order was made. If the order was a case management order or an interim care or supervision order the time limit is 7 days. For an Appellant’s Notice and further information about how to appeal go to the HMCTS Form Finder at http://hmctsformfinder.justice.gov.uk/HMCTS/FormFinder.do and enter ‘Appellant’s Notice’ in the ‘Words from Title’ field.

You can get permission to appeal late, but the Court of Appeal recently confirmed in Re H (Children) that this is ‘exceptional’, given the importance of making speedy decisions in cases involving children.

You then have to send a copy of your appellant’s notice to the other parties in your case. Rule 30.6 tells you what you have to put in your appellant’s notice – basically your ‘grounds of appeal’

  • what are the reasons you say the judge got it wrong.
  • Are you saying that the Judge ignored relevant evidence?
  • Or relied on things that were untrue?

I have decided I want to appeal.

Where do I send the Appellant’s Notice?


If you are appealing an order made by magistrates or a district judge the Appellant’s Notice must be sent to the family court where the order was made.  If you want to appeal a decision of a circuit judge or recorder in a public law case (including adoption) the Appellant’s Notice must be sent to the Court of Appeal Civil Appeals Office (Royal Courts of Justice, Room E307, Strand, London WC2A 2LL; email: ci*******************@***********ov.uk).

What court do I go to?

The actual process of appealing can be quite complicated. You probably won’t go straight to the actual ‘Court of Appeal’. The ‘appeal court’ that will consider your application will depend on which judge made the first decision in your case and the rules about this changed in 2014.

You need to look carefully at the relevant rules and practice direction as they are long and I will only attempt to summarise the most important bits here. See Part 30 of the Family Procedure Rules and Practice Direction 30A 

 BUT BEWARE THESE APPEAR NOT TO HAVE BEEN UPDATED – the routes to appeal are wrong for e.g.

The routes of appeal from one level of judge to another have been revised with effect from 22 April 2014 to take account of the new Family Court. The Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2014 amends the Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2011 to provide that an appeal from a decision of a court officer, justices’ clerk, justice(s) of the peace, or (deputy) district judge, including a district judge (magistrates’ courts), will lie to a judge of the Family Court.

ROUTES OF APPEAL AS FROM 22 APRIL 2014

Table from Hershman and McFarlane Children Law and Practice; uptodate as of January 2018

The provisions of the amended AJA 1999 (DA)(FP)O 2011 are supplemented by the Family Court (Composition and Distribution of Business) Rules 2014. The Rules provide that appeals within the Family Court that would usually be heard by a circuit judge, may go before a High Court judge if this is the best use of local judicial resources.

Decision of judge sitting in the family court

Permission generally required (subject to exception in rules of court, for example, no permission required to appeal against a committal order)

Appeal to

1 A bench of –

No

a judge of circuit judge level sitting in the family court;

two or three lay magistrates; or

a lay justice

a judge of High Court judge level sitting in the family court where a Designated Family Judge or a judge of High Court Judge level considers that the appeal would raise an important point of principle or practice.

(NB a judge of High Court judge level may hear the appeal in interests of effective and efficient use of local judicial resource and the resource of the High Court bench)

2 A judge of district judge level (except the Senior District Judge of the Family Division or a District Judge (PRFD) in proceedings for a financial remedy)

Yes

As above

3 District Judge (PRFD) in proceedings for financial remedy

Yes

Judge of High Court judge level sitting in the family court

4 Senior District Judge of the Family Division in proceedings for financial remedy

Yes

Judge of High Court judge level sitting in the family court

4A Circuit judge or Recorder, except where paragraph 5 of this table applies.

Yes

High Court Judge (sitting in the High Court)

5 Circuit judge or Recorder, where the appeal is from:(a) a decision or order in proceedings under –(i) Part 4 or 5 of, or paragraph 19(1) of Schedule 2 to, the Children Act 1989; or(ii) the Adoption and Children Act 2002;(b) a decision or order in exercise of the court’s jurisdiction in relation to contempt of court, where that decision or order was made in, or in connection with, proceedings of a type referred to in sub-paragraph (a); or(c) a decision or order made on appeal to the family court.

Yes

Court of Appeal

6 Costs Judge

Yes

Judge of High Court judge level sitting in the family court

7 Judge of High Court judge level

Yes

Court of Appeal

8. Any other judge of the family court not referred to in paragraphs 1 to 7 of this table.

Yes

Court of Appeal

The Court of Appeal operates under a similar but different set of rules – the Civil Procedure Rules (CPR) as opposed to the Family Procedure Rules (FPR). The usual position is that hearings in the Court of Appeal are held in open court, unlike the vast majority of court hearings involving children. See further this post from the Transparency Project – High Court appeals to be heard in open court?

The Court of Appeal is facing a huge back log of work and there has been an increase in the number of litigants in person so in 2016 there was a change to the court rules to try and deal with this. The rules introduce a new Part 52.  You used to have an automatic right to request an oral hearing for permission to appeal, if your first request in writing was rejected. This has now changed. Your application for permission to appeal will be decided on your written application unless the court decides this would not be fair, and it needs to hear further argument.

How do I get permission to appeal?

The role of the appellate court and its approach to applications for permission to appeal are determined by the provisions of the Family Procedure Rules 2010 (“FPR”) and by case law.

The test for granting permission is set out in FPR rule 30.3(7) which provides that permission will  where: a) there is a real (realistic as opposed to fanciful) prospect of success or

b) there is some other compelling reason to hear the appeal.

FPR rule 30.12(3) provides that an appeal may be allowed where the decision was wrong or unjust for procedural irregularity.

The court will apply the principles set out by Lord Hoffman in Piglowska v Piglowski [1999] 1 WLR 1360.

The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the Judge gave in this case. These reasons should be read on the assumption that, unless he has demonstrated the contrary, the Judge knew how he should perform his functions and which matters he should take into account

The Court of Appeal held in Re R (A Child) [2019] EWCA Civ 895 “The test for the grant of permission to appeal on an application to the Court of Appeal or to the High Court or Family Court under the first limb of the relevant sub-rule is that the appeal would have a real prospect of success”.

If permission to appeal was refused by the Judge who made the first decision, your first step is to get the appeal court to give you permission. It maybe that your appeal will be listed to be heard immediately after the application for permission, if that is successful.

Note the distinction between ‘first’ and ‘second’ appeals. Under Part 52.6 of the CPR  – mirrored in FPR rule 30.3 (7) – if this is your first appeal, permission to appeal will only be given where:

  • the court considers that the appeal would have a real prospect of success; or
  • there is some other compelling reason for the appeal to be heard.

If you are now applying to the Court of Appeal for permission to make a ‘second appeal’ – that is, of a decision you have already appealed to another lower Judge, permission will only be given if the Court of Appeal decide that your appeal would:

  • have a real prospect of success; and
  • raise an important point of principle or practice; or
  • there is some other compelling reason for the Court of Appeal to hear it.

Applying for permission to appeal to a Circuit Judge or in the High Court.

You can request an oral hearing – i.e. where you get to make your arguments in person before the Judge. However, the Judge dealing with your written application can decide that your application is totally without merit and can make an order preventing any further oral hearing.  See FPR rule 30.3 (5A).

The court will consider the  Court of Appeal decision in R (Wasif) v Secretary of State for the Home Department [2016] 1 WLR 2793. No Judge should certify an application as ‘totally without merit’ unless he or she is confident after careful consideration that the case truly is bound to fail. He or she will no doubt have in mind the seriousness of the issue and the consequences of his decision in the particular case.

Your only option if this happens is to apply for judicial review of the Judge’s refusal to grant you permission to appeal, but the circumstances would need to be ‘exceptional’.

If your application for permission by way of written application is refused but not dismissed as without merit, FPR 30.5(5) and (6) allow you to challenge that decision as long as you ask for another hearing in writing within 7 days of notice that permission was refused. However, this rule does NOT apply to any appeals to the Court of Appeal.

If I am applying for permission to appeal, does this put the original order ‘on hold’?

FPR rule 30.8 states that unless the appeal court or the lower court orders otherwise, an appeal does not operate as a stay of any order or decision of the lower court. In N (Children: Interim Order/Stay) [2020] EWCA Civ 1070 the Court of Appeal gave guidance on the granting of short-term stays in family proceedings. At paragraph 36 the court stated that a short-term stay to enable an application to be considered by an appeal court before an order is put into effect is to be distinguished from a stay pending a decision on permission to appeal or a stay pending appeal.

Applications for stays while waiting for a decision, will be considered in accordance with the principles set out in Hammond Suddards Solicitors v Agrichem International Holdings Ltd [2001] EWCA Civ 2065. The court has a discretion whether or not to grant a stay. Whether the court should exercise its discretion to grant a stay will depend upon all the circumstances of the case, but the essential question is about the risk of injustice to either party if a stay is – or isn’t – granted.

By contrast, a short-term stay is a purely practical remedy. The correct approach for the court to take to was described by Wilson LJ in Re A (A Child) [2007] EWCA 899 at [27],where he confirmed that the judge should always give serious consideration to allowing an Applicant “a narrow opportunity” to approach this court so that the opportunity for a successful appeal is not unfairly eroded.

If the Judge decides to grant a short term stay, this is done by directing a short period of time before the order takes effect, for example until the end of the next working day. If the Judge isn’t minded to allow a stay, the person seeking the stay could make an urgent telephone application to the appellate court.

What can the appeal court do? Rule 30.11

Once you have got permission to appeal and made your application, what can you expect from the appeal court? There are a variety of possible outcomes. The appeal court could:

  • agree with the order of the first court; or
  • set aside or vary any order or judgment from the court below; or
  • Refer any application or issue for determination by lower court; or
  • Order a new hearing; or
  • Make orders for payment of interest; or
  • Make a costs order.

An appeal is limited to a review of the decision of the lower court UNLESS the appeal court decides the interests of justice require a re-hearing.

Can I bring any new evidence before the appeal court?

Generally, no. The appeal court will not be keen on hearing new evidence, either spoken or in writing unless you have some very good reasons why that evidence hadn’t been available to the first court.

Fresh evidence will not be admitted without an order to that effect. Fresh evidence may be evidence of events since the decision under appeal or evidence relating to matters before the hearing that is subject to an appeal, but which was not available at the hearing in the lower court.

There is no specific requirement to be satisfied in respect of an application to admit fresh evidence. The court will consider the requirements set out in Ladd v Marshall (1954) FLR Rep 422 in a case where the evidence was in existence at the time of the hearing in the lower court.

  • The evidence could not have been obtained with reasonable diligence at trial
  • evidence must be such that, if given, it would probably have an important influence on the result of the case; although it need not be decisive; and
  • The evidence must be such as would presumably be believed, or in other words, it must be apparently credible although it need not be uncontroversial.

The recent case of A & I (Children: Appeal: Relocation & Joint Lives-With Orders: Fresh Evidence), Re [2024] EWCH 1824 sets out a useful summary of the relevant law in this area.

Permission to appeal is granted – Will my appeal be successful?

Rule 30.12 (3) of The Family Procedure Rules 2010 reads as follows: ‘The appeal court will allow an appeal where the decision of the lower court was:

  • (a) wrong; or
  • (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court’.For example:a) an error of law has been made;b) a conclusion on the facts which was not open to the judge on the evidence has been reached: Royal Bank of Scotland v Carlyle [2015] UKSC 13, 2015 SC (UKSC) 93.c) the judge has clearly failed to give due weight to some very significant matter or has clearly given undue weight to some matter: B-v-B (Residence Orders: Reasons for Decision) [1997] 2 FLR 602.

    d) a process has been adopted which is procedurally irregular and unfair to an extent that it renders the decision unjust: Re S-W (Care Proceedings: Case Management Hearing) [2015] 2 FLR 136.

    e) a discretion has been exercised in a way which was outside the parameters within which reasonable disagreement is possible: G v G (Minors: Custody Appeal) [1985] FLR 894.

Thorpe LJ set out the ‘essential test’ in Re B (Appeal: Lack of Reasons) [2003] EWCA Civ 881:

….does the judgment sufficiently explain what the judge has found and what he has concluded as well as the process of reasoning by which he has arrived at his findings and then his conclusions.

The Supreme Court considered the nature of appeals against care orders in Re B in 2013. This is a very important decision in relation to the role of the appellate court in cases that involve the making of care orders.

The decision of a Judge as to whether or not the threshold is crossed in a particular case is an exercise of that judge’s discretion. The next decision is what kind of order should be made, once threshold is crossed. That is both an exercise of the judge’s discretion and imposes an obligation upon him or her to make a decision that is proportionate and thus compliant with Article 8 of the ECHR.

It was a unanimous decision that the test to be applied by the appeal court is whether or not the decision below was ‘wrong’.

For an example of where a Judge got it very, very wrong – by making final care orders at a Case Management hearing – see the case of Re S-W (Children) EWCA Civ 27 in 2015.

The Judge is likely to have got it wrong if he or she:

  • relied on something that was irrelevant;
  • failed to consider a relevant matter
  • made a mistake about the law;
  • applied the wrong principle;
  • failed to give adequate reasons for his/her decision.

Procedural irregularites

Even if the Judge’s decision was not considered ‘wrong’ the appeal court might be sufficiently concerned about ‘procedural irregularities’ – problems in the trial process, such as inexcusable delay –  that could make a decision unjust and thus lead to a successful appeal.  See MacFarlane LJ in A (A Child) 2013 at para 77:

Drawing matters together, whilst I do not conclude that the outcome ordered by the judge is, of itself, wrong and therefore to be set aside, I am sufficiently concerned about the process of these proceedings as a whole, which I have held has violated the Art 8 rights of both M and her father, and also by the deficits in the judge’s analysis which I have now identified, to conclude, in the words of CPR, r 52(11)(3), that the outcome is ‘unjust because of a serious procedural or other irregularity’. For the previous systemic failure to end in a hearing which itself was highly unsatisfactory and where the judge has failed to conduct a sufficiently thorough analysis, makes it almost inevitable that this court will consider that it has a duty to intervene with the aim of establishing an effective and full rehearing.

You should also keep in mind the following considerations:

  • The appeal court should NOT interfere with the first court’s decision, just because it would have made a different decision. It should only interfere if that decision is ‘wrong’.
  • The appeal court will also remind itself that the first judge had a significant advantage in that he/she got to see and hear the parties give evidence and is thus in a much better position than the appeal court to assess the strength of that evidence.
  • Just because a judgement is short doesn’t make it automatically suspect. The more experienced a judge, the more likely he or she can express the reasoning process shortly.

My appeal is successful – should the court order a re-hearing?

The case of B (A child) [2014] looked at the issue of whether or not a successful appeal should lead to a re-hearing or the appeal court substituting their own decision. The question is – can the appeal court put the mistake right? Or is the mistake too big and we need to start again? The court considered this issue at paras 29 -32 of the judgment and held

  • The judge’s first task on appeal is to identify the error of fact, value judgment or law which is bad enough to allow the appellate court to interfere.
  • In care proceedings, it will always be a value judgment about the child’s welfare and whether or not the decision appealed against was a proportionate response; so the appeal judge needs to review whether that decision was right or wrong.
  • Once the judge has identified the error, its up to the judge whether or not to make another decision or to send it back for another hearing before a different judge.
  • The judge has the power to fill gaps in the reasoning of the first court and give additional reasons in the same way that is permitted to an appeal court when a Respondent’s Notice has been filed.
  • In the exercise of its discretion the court must keep firmly in mind the procedural protections provided by the Rules and Practice Directions of both the appeal court and the first court so that the process which follows is ‘procedurally regular,’ that is fair.
  • If the appeal judge decides that the error identified is sufficiently discrete that it can be corrected or the decision re-made without procedural irregularity then the appeal court may be able to correct the error and support the first order – i.e. decide that the right decision had been made, just for the wrong reasons. This may be the right thing to do when the first judge’s reasoning process was not clearly set out in the judgment. 
  • BUT  If the question to be decided is a key question upon which the decision ultimately rests and that question has not been answered and in particular if evidence is missing or the credibility and reliability of witnesses already heard by the first court but not the appeal court is in issue, then it is likely that the proceedings will need to be remitted to be re-heard.
  • If that re-hearing can be before the judge who has undertaken the appeal hearing, that judge needs to acknowledge that a full re-hearing is a separate process from the appeal and that the power to embark on the same is contingent upon the appeal being allowed, the orders of the first court being set aside and a direction being made for the re-hearing. In any event, the re-hearing may require further case management.

The two part consideration to be undertaken by a family appeal court is heavily fact dependent. I cannot stress enough that what might be appropriate in one appeal on one set of facts might be inappropriate in another. It would be unhelpful of this court to do other than to highlight the considerations that ought to be borne in mind.

There is a useful article about this case by suesspiciousminds here.

Discharge of the care order

My situation has changed

If some time has passed since the judgment – months, rather than weeks – and you think you can show that your situation has changed for the better, you can apply to discharge the care order.

Section 26 of the Children Act 1989 says there must be regular case reviews for all Looked After Children (the LAC Review) which will include getting the views of the parents and children. One item to be considered every six months is whether or not the LA 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.

The application for discharge of a care order is dealt with at  section 39 of the Children Act 1989:

Discharge and variation etc. of care orders and supervision orders.

(1) A care order may be discharged by the court on the application of—
(a) any person who has parental responsibility for the child;
(b) the child himself; or
(c) the local authority designated by the order.
(2) A supervision order may be varied or discharged by the court on the application of—
(a) any person who has parental responsibility for the child;
(b) the child himself; or
(c) the supervisor.

Case law on discharging care orders

If the court does not think your application has any merit, it can dismiss it quickly – see the case of A-Z v Birmingham City Council in 2013. The father had had no contact with any of his children for at least 18 months and the court concluded there was no prospect that their current placements would be disrupted.

See also the case of X (Discharge of care order [2014] EWFC. The Judge was very concerned in this case by the failures of the LA. The court emphasised that it was important to look at the question of whether or not it was proportionate for a care order to continue. Suesspiciousminds has commented on this case here.

The case of TT (Children) [2021] EWCA Civ 742 (20 May 2021) looked at the test to be applied to discharge a care order and said at para 37:

  1. Further, at the level of principle, the fundamental test to be applied to an application under s. 39, and to other applications under the Act, is, as I have said, the welfare principle and not a test of necessity or some other test. The attempt in this and other cases to shift the focus away from welfare is neither helpful nor necessary. A proper welfare analysis and proportionality crosscheck is a dependable bulwark against any tendency towards social engineering.

The judgment of Mostyn J in the case of GM v Carmarthenshire County Council & Anor [2018] EWFC 36 (06 June 2018) –  where he commented that if this mother’s application didn’t succeed then section 39 should be scrapped and cast doubt on the validity of attachment theory – has been criticised by the Court of Appeal in TT (Children) above, so treat with caution.

Procedure to apply for a discharge of the care order

You will apply on Form C110A with copies for each respondent, which is every person you think has parental responsibility for the child under a child arrangements order before the care order was granted, the child, the parties to the original care proceedings. Other people must be given notice of the proceedings, including the LA who is providing accommodation for the child and anyone who is caring for the child at the time you make the application.

See also the FPR Practice Direction 5A and 12A.

On filing your application with the court, the Public Law Outline timetable starts running so the application must be completed in 26 weeks.

EDIT 24th January 2019 there appears to be considerable confusion about whether or not C110A IS the right form. One parent contacts me to say that no one can clarify if she is required to fill in a C1 a C100 OR C110A. After pleas for clarification via Twitter, five lawyers have opined it is C110A; but a very respected child protection lawyer responds that it is in fact C1 and C110A is used by those who wish to apply for an EPO. I think sadly all I can say is – watch this space. But it clearly isn’t acceptable that so much confusion exists about such a fundamental matter.

Edit 20th February 2019 – the parent in question applied using the C110A which the court accepted. So use this form or ask the court office to clarify which one they want you to use! For further discussion see this post. 

Further reading

2023 research into discharge of care orders.https://policystudies.blogs.bristol.ac.uk/2023/05/05/the-discharge-of-care-orders-a-study-of-england-and-wales/

The study found that the number of discharge applications has increased significantly since 2010 in both England and Wales. While the number of care orders has also increased, proportionately the increase in discharge applications is much higher. We found that about three quarters of all discharge applications are successful – and the care order is discharged. The local authority was the most common applicant to discharge a care order, with parents making about a third of all applications. Notably, there were very few applications made by children themselves. Local authority applications were much more likely to be successful when compared with parental applications. Evidence from court records and interviews indicated that parents often did not have legal advice or representation, and this impacted on their applications for discharge.