Author Archives: Sarah Phillimore

Transparency – where now?

This is a post by Sarah Phillimore. TL:DR – there is clearly a need for a shift in culture and an attempt to better balance the need for children’s privacy against the need for public trust and confidence in the system. This shift will only occur however if is properly resourced – simple exhortations to do better will achieve nothing. We will also need to keep an eye out for the operation of the Law of Unintended Consequences, and the likely satellite litigation that will follow attempts to withhold certain documents from journalists.

On 28th October 2021 the President of the Family Division released the review of progress of increased transparency in the family justice system; Confidence and Confidentiality: Transparency in the Family Courts in the Family Courts, noting that the pace of change to date had been ‘glacial’, owing in part to the tensions between two fundamental principles

…the need to enhance public confidence in the Family Court and, on the other, the need to maintain confidentiality by safeguarding the privacy of those who turn to the court for protection or for the resolution of intimate disputes.

A quick google of the title brings the first result, depressingly, a very similar named Government paper from 2006 which supports the President’s disappointment with the pace of change. We seem to have all been agreeing for decades that our current methods of wrangling the tension between these two principles are failing, and that this risks a serious impact on public trust and confidence in the system. So what now? Is anything actually going to change this time?

The President is clear that things must change and he will take responsibility for making this change. He sets out at para 5 why this is an important issue – the caseload of the FJS is immense – 224,902 cases in 2020 alone. So a lot of people have a direct interest in knowing how judges exercise their discretion in these cases. ‘Open Justice’ is also ‘a fundamental constitutional imperative’. Without public scrutiny, how are judges held to account for the decisions they make?

But of course the arguments against increased publicity are also strong and well known; primarily the impact on children who may not want the intimate and distressing details of their family life to be public knowledge.

A current stumbling block is section 12 the Administration of Justice Act 1960, which I have written about here. This is poorly understood legislation which has undoubtedly had a chilling impact on what may or may not be discussed about cases in the family courts. So even though the rules were changed to allow accredited media representatives and legal bloggers to attend private Family Court hearing as of right (r 27.11), they are still covered by AJA 1960, s 12 which prevents publication of information relating to proceedings if they concern children – thus removing much of the point of being there at all.

The reporting that IS done is often based on ‘anonymous accounts of negative experiences’ to which the system cannot respond, leading to (para 27):

thoroughly unsatisfactory state of affairs, with the drip-drip of concerning stories, that are neither answered nor explained by publication of a judgment, inevitably eroding public confidence in the Family justice system.

The President states that the way of reconciling two potentially competing needs of open justice and protecting children, is not to fall into the trap of thinking this is a simple binary – open the courts, yes/no. The President comments that the work of National Family Justice Observatory, The Transparency Project and the success of the CoP Open Justice Project, run by Professor Celia Kitzinger, has shown that it is possible to produce commentary and information about the system, without compromising privacy. So how do we move this work forward to a larger stage?

A major shift is required in culture and process to increase transparency

The President notes that previous efforts to effect this shift have not worked. Journalists don’t attend court hearings – and why would they! They are worried about being found in contempt of court. Judges are not publishing enough judgments – unsurprisingly when they do not have the time to prepare anonymised judgments.

The suggestions to achieve the shift are as follows. This will start with a trial run or ‘pilot’ in two local authority areas (one urban and one rural) to ensure that the changes work in an effective way and to deal with any unforeseen issues and problems that may arise before it is rolled out nationally. Some are simple, practical and effective and hopefully can be ‘rolled out’ without too much trouble – others however are going to present more significant challenges, and in particular will need money to make them work.

  • accredited media representatives and legal bloggers to be able, not only to attend and observe Family Court hearings, but also to report publicly on what they see and hear.
  • Reporting must be subject to very clear rules to maintain both the anonymity of the children and family members who are before the court, and confidentiality with respect to intimate details of their private lives.
  • to establish a Transparency Implementation Group [‘TIG’] to support implementation of changes
  • urgent consideration of Parliament to consider section 12 of the AJA – and while waiting, amend the Family Procedure Rules as far as possible to mitigate its impact
  • to monitor journalists, both locally and nationally, and, where clear misreporting occurs, for it to be taken up with the relevant editors.
  • establish links at a national level between the PFD and the Society of Editors, and at a local level between DFJ’s and their local media.
  • establish a Media Liaison Committee comprised of journalists, media lawyers and judiciary (together with others who may include individuals who are wholly from outside the spheres of Family Justice or the media).establish a forum for discussion between the local and national family judiciary
  • Further consideration of what documents should be disclosed, giving the judge an over arching discretion to withhold documentation if necessary.
  • Accredited media representatives and legal bloggers should be added to the list of those to whom a party may communicate information relating to children proceedings under FPR, r 12.75(1), PD12G and PD14E. 
  • In order to ensure that a larger number of judgments are published, all judges to publish anonymised versions of at least 10% of their judgments each year – this may sound low but will be a significant improvement on what is happening now.
  • press for the establishment of an Anonymisation Unit within HMCTS which, through a combination of human input and/or software, will undertake the task of anonymisation. 
  • DFJ’s to invite local MP’s to the court so that a fuller understanding of the work and approach of the Family Court can, over time, develop.
  • a scheme of compulsory data collection at the end of each case. 
  • court lists should be made available in advance to journalists/bloggers which identify the general nature of the proceedings, the category of hearing and the time estimate.
  • a modern online hub to access which will explain the work of the Family Court, how cases are dealt with, what other options exist for dispute resolution and how to make an application. The website could signpost visitors to other potential sources of support or information. It should be the go-to first point of reference for anyone who has a need to engage with the Family Court.
  • the public to have access to an annual report, which would include data setting out case numbers, categories of proceedings and outcomes. The report would also include an annual audit on the progress of the various initiatives that are now to be launched under the overall umbrella of ‘transparency’.

My comments

I agree that something has to change. I echo all that is said about the dangers of allowing anonymous reports made to partisan journalists being the only public source of information that many have. But I do wonder how simple declarations of intent such as “openness and confidentiality are not irreconcilable and each is achievable. The aim is to enhance public confidence significantly, whilst at the same time firmly protecting continued confidentiality” are really are going to play out in practice.

I have commented about my own ‘journey’ with regard to transparency – from my initial and in hindsight embarrassingly naive world view that all we needed was to embrace open discussion and all would be well – to what I think is a much bleaker, but more realistic view of human nature, our love of stories and our resistance to accepting facts which challenge our narratives. I am afraid I no longer have confidence in journalists to reliably report facts, rather than cherry pick those facts to suit a narrative. The depressing reality is that most journalists only appear to care about the ‘sexy’ stories – the vast and mundane bulk of family cases will not attract their attention. It is not simply fear of contempt of court that has seen them stay away from court rooms. It is rather than 99% of family cases are of absolutely no interest to other than the people directly involved.

I am particularly concerned about the proposals regarding what documentation is to be released. At para 43 the President says:

My preliminary view is that those attending should be allowed to read position statements and witness statements but not medical reports or primary documents such as police disclosure. However, in all cases the judge will have a discretion to withhold documentation if that is necessary on the facts of the case.

This is going to need very careful thought. My own experience of journalists attempting to see documents which provide the ‘meat’ of a case – namely highly sensitive and personally distressing details about mental health conditions etc – has been entirely negative, leading to a raft of ‘satellite litigation’ over what could or couldn’t be disclosed, wasting the time of the courts and causing considerable distress to the lay parties. I am afraid that it is medical and police reports that journalists will want to see, as they are likely to contain the kind of intimate detail to make reporting ‘worthwhile’. I think it is this issue where the simple declaration ‘we can do this!’ is likely to founder and likely to bog down the family courts in further litigation that it simply does not have the capacity to deal with.

Further, it is good to see that the President is clearly alive to the difficulties of asking judges to produce ‘publication ready judgments’ – anonymisation is not simply a matter of stripping out names and replacing with initials. Care must be taken to avoid details that lead to ‘jigsaw identification’. Great detail about the nature and type of abuse suffered by a child is also not appropriate for wider publication. The suggestion is that a dedicated unit is set up to help judges – this would be ideal, but I suggest highly unlikely to ever be achieved, when our daily mantra is ‘there are no resources’ .

Almost as an aside at para 32, the President comments about the importance of data collection, which I think is key. There is a ‘data black hole’ over much of the FJS, and most obviously regarding outcomes; we rarely have feedback about whether or not a ‘final order’ actually brought any longstanding peace to a family. There is work being done by HMCTS across the justice system on collecting and using data, following the report and recommendations of Dr Natalie Byrom “HMCTS: Making the most of HMCTS data October 2020” and I would be very interested to know more about this. Better understanding of who is coming to court, why and what are the outcomes would, in my view, go a long way to improving public confidence in the system without requiring knowledge of intimate details about individual families.

I would also like to see more creative thinking. Judge Wildblood QC the Designated Family Judge for Bristol, has been experimenting for some time with efforts to bring the family justice system to the public with a variety of seminars and plays – his most recent ‘The Shake’ was held on line and about 630 people joined the remote link. There is clearly an enormous appetite for discussion and information and we need to think of other ways we can provide this, rather than simply holding up individual families for scrutiny in the actual court process. For example, I have recently volunteered to be a mentor to school students holding mock Trials, through the ‘Young Citizens’ project – we can think more about how education can be provided via schools to help people grow up to understand their country’s legal systems better.

In essence, what is necessary to achieve confidence in any legal system is quick and affordable access to robust decision making. I have significant doubts that this fundamental aim is going to be helped by encouraging more legal blogging or arguing over whether or not a journalist gets to see a psychiatric report. But, as ever, we will see. I can only hope that this Transparency Review does not join its 2006 iteration in the digital graveyard of lost causes.

Guidance on witness statements in family proceedings

President’s Memorandum: Witness Statements 10 November 2021

1. Too many witness statements are prepared in breach of proper professional standards.

2. It is clear that this problem is not confined to proceedings in the Family Court. It has become so acute in the Business and Property Courts that it has been necessary to pass a highly prescriptive Practice Direction – CPR PD 57AC – to seek to deal with the problem.

3. I do not consider that the Family Court needs an equivalent Practice Direction, at least not at the present time. However, the Family Procedure Rule Committee will have to consider introducing such a measure if the principles in this memorandum are not observed.

The fundamental requirements

5. Witness statements must only contain evidence from the maker of the statement.

4. Witness statements tell the parties and the court what evidence a party intends to rely on at a final hearing. Their use has the key added benefit of promoting the overriding objective by helping the court to deal with cases justly and proportionately, including by helping to put parties on an equal footing, saving time at the final hearing and promoting settlement in advance of the final hearing.

6. The statement must be expressed in the first person using the witness’s own words (PD 22A para 4.1).

7. A witness statement must not: a. quote at any length from any document; b. seek to argue the case; c. take the court through the documents in the case; d. set out a narrative derived from the documents; e. express the opinions of the witness; or f. use rhetoric.

Facts, information and belief

8. A witness statement may only set out matters of fact and matters of information and belief (para 4.3).

9. Matters of fact include past facts (i.e. events which have happened) and future facts (i.e. events which are expected to happen). A statement may state only those matters of fact of which the witness has personal knowledge and which are relevant to the case. The statement must indicate the source of any matters of information and belief. Evidence about proposed child arrangements or, in a financial remedy case, about needs, will be matters of information and belief. Therefore, where such evidence of such information and belief is given, the source or basis for that belief must be stated.

Documents

11 a. The statement must identify in a list appended to it what documents, if any, the witness has referred to, or been referred to, for the purpose of providing the evidence set out in the statement. b. The statement should identify or describe the documents in such a way that they may be located easily at the final hearing. c. Documents disclosed in the proceedings should be listed by disclosure reference (e.g. “reply to questionnaire bundle at page 75”). Such documents must not be annexed to the statement. d. The requirement to identify documents the witness has referred to, or been referred to, does not affect any privilege that may exist in relation to any of those documents. Privileged documents may be identified by category or general description. e. Documents in the list which are not privileged and have not been previously disclosed must be disclosed at the same time that the witness statement is filed and served.

Memory

12. A person involved in preparing the statement of a witness must not, subject to the next paragraph, in any way seek to alter or influence the recollection of the witness. This is a rule of fundamental importance, breach of which will be serious professional misconduct.

13. However, the memory of witnesses may be refreshed by showing them a document which they created, or which they saw while the facts stated in the document were still fresh in their mind. Any such document must be listed under para 11.

14. Parties should understand that the court’s approach to witness evidence based on human memory will be in accordance with CPR PD 57AC, Appendix para 1.3. This states that human memory: a. is not a simple mental record of a witnessed event that is fixed at the time of the experience and fades over time, but b. is a fluid and malleable state of perception concerning an individual’s past experiences, and therefore c. is vulnerable to being altered by a range of influences, such that the individual may or may not be conscious of the alteration. A person involved in preparing a witness statement should keep this very clearly in mind and, therefore, be wary of categorical statements about past events unless those events are corroborated by contemporaneous documents.

Length of the statement

15. A witness statement must be as concise as possible without omitting anything of significance.

16. As a general standard, a witness statement should not exceed 15 pages in length (excluding exhibits). This page limit is a statement of best practice and does not derogate from the limit of 25 pages in PD 27A para 5.2A.1, which should be regarded as a maximum.

Sanctions

17. The court has a power under FPR 22.1(2) to exclude evidence that would otherwise be admissible. The court will consider excluding under this rule a witness statement which materially fails to comply with the standards in this memorandum. The court also has power under CPR 44.11(1)(b) to disallow the costs incurred in preparation of a non-compliant witness statement.

Template for LIPs in non-complex private law welfare cases

18. A useful template for use by Litigants in Person in non-complex private law welfare cases is attached to this memorandum. Its use in such cases is optional, but is strongly encouraged.

19. It should be noted that a guide for LIPs litigating in the Family Court will be prepared in due course.

The silence of the Children’s Commissioners: Part II

This is a post by Sarah Phillimore

In May 2021 I wrote about the strange silence of the Children’s Commissioners about the issues of child safeguarding and welfare, which attracted international attention in the wake of the High Court ruling in Bell v Tavistock.

I could find nothing on the websites of any of the four Commissioners to suggest that this was an issue they were even aware of, let alone discussing. I was contacted by a person who made a FOI request on 7th January 2021 to the Children and Young People’s Commissioner Scotland for information held on the Keira Bell High Court judgment of 1st December 2020. This request was refused, went through an appeal process and the refusal was upheld.

I commented back in May that the reasons for refusal were concerning:

I have some sympathy with the need to exempt from disclosure material which represents the necessary ‘to and fro’ as people raise, discuss and refine issues of importance. I also understand the importance of maintaining confidentiality around legal advice. But it is very concerning that an organistion with the status of a Children’s Commissoner is clearly concerned that the nature of the discussion within its organisation and with the other offices may risk contributing to the ‘toxic nature’ of the debate. How could this be possible given that all who work there must be alive to the need ‘to keep the discussion focused on the issues and on the law rather than personalising them’?

I suspect there are two problems here. Given the nature and extent of institutional capture in the UK, individual staff members may have gone way beyond a focus on the law and engaged in moral castigation of those ‘hateful bigots’ who would seek to impede a child’s identification of their ‘authentic selves’. OR there is a realistion that simply commenting on the relevant law will be seen and seized upon by many as a ‘hateful’ ‘bigoted’ attack on the rights of an ‘exceptionally vulnerable’ minority. 

I have now had the benefit of reading more fully the reasons for upholding the refusal in ‘Decision Notice 171/2021’

The analysis notes that the withheld information comprises an email chain that originated from a member of staff of one UK Children’s Commissioner to their Commissioner, which was forwarded on. The Scottish Children’s Commissioner refused to disclose that email under sections 30(c) and 36(2) of The Freedom of Information (Scotland) Act [FOISA]. There was also an email from its in-house legal officer which it refused to disclose, citing section 36(1) of FOISA, which exempts disclosure of information which is confidential due to legal privilege.

The applicant argued that the public interest favoured disclosure as it pertained to a significant issue of child safeguarding and the views of the office charged with safeguarding those interests.

The Commissioner recognised the tension between two competing interests; public interest in such a significant area of child safeguarding, but also the interest of the Scottish Children’s Commissioner to receive full and unhindered legal advice to enable it to come to fully formed decisions. It decided that legal privilege outweighed the public interest in this regard.

With regard to the emails, 36(2) of FOISA provides that information is exempt from disclosure if it obtained from another person and disclosure would constitute a breach of confidence. However, it is generally accepted in common law that an obligation of confidence will not be enforced to restrain disclosure of information which is necessary in the public interest.

There are three main requirements to establish if information is given in confidence

  • the information must have the necessary quality of confidence
  • the public authority must have received the information in circumstances which imposed on it an obligation to maintain confidentiality
  • unauthorised disclosure must not be to the detriment of the person who communicated the information.

The Commissioner found that the first two requirements were met as the Children’s Commissioners were sharing information with each other ‘in confidence’ to promote their working relations.

But what about the third? The test of detriment does not require substantial damage, and could follow from mere fact of unauthorised disclosure. And this is where, in my view, it gets very interesting. The Scottish Children’s Commissioner stated that it did not have consent for wider disclosure from the individual who shared the information.

It explained that the issue under discussion was and remained highly contentious, with public opinion being very polarised. In its view, disclosure would cause significant emotional distress to this individual, with a real risk of them being exposed to online harassment and abuse for the opinions they expressed

The Commissioner accepted that the risk of online harassment is credible (but no where do I see any discussion of how it would be possible to disclose the contents of the email and keep the emailer’s identity private) and went on to consider the public interest in disclosing in any event. The Commissioner agreed with the reasons put forward by the Commissioner:

  • there was no attempt here to cover up any wrongdoing
  • there was a significant amount of information and commentary already in the public domain
  • at the time the information was withheld this was a live case still before the Court of Appeal
  • sharing information between Commissioners was to be encouraged

So what next?

The applicant has a right to appeal, I do not know if she will exercise that right but she has 42 days from the date of the decision. As an analysis of the relevant law it seems unremarkable – but what it throws up about the nature and the quality of discussion around medical transition is very remarkable indeed.

I can only speculate as to the contents of the relevant email and the language used which led to a credible fear of ‘on line harassment’ if it were revealed. The continuing silence of the Children’s Commissioners in expressing any kind of view about the advisability or efficacy of medical transition makes me ponder that the email was supportive of those who claim that any challenge to or discussion of these issues is ‘transphobia’ or other unacceptable bigotry.

But it doesn’t really matter which ‘side’ of the polarised debate the author fell. What is truly shocking is that we have reached a position in 2021, in a secular democracy, where particular views must be shielded from public gaze lest they attract abuse, intimidation and other threats. This is particularly worrying when the organisations who feel they have no choice but to be silent are those charged with statutory obligations to safeguard our children.

I am not aware that any of the Children’s Commissioners have since expressed any public view at all about medical transition. Perhaps they are awaiting the Cass Review? But at some point, and soon, they are going to have to fulfil their statutory obligations and the silence must end.

EDIT

Thanks to a Twitter user who reminded me that it was Anne Longfield as England Children’s Commissioner who remained completely silent (despite many parents and whistleblowers contacting her) right up until the judicial review proceedings.

However, she then she ordered the Care Quality Commission inspection which reported in January 2021 and found the Tavistock to be ‘inadequate’. Longfield was then replaced by Dame Rachel de Souza as Commissioner. I wonder if there is anything interesting in that timing. I guess we will never be allowed to know.

So useful to be reminded that the Children’s Commissioners do have some role to play. But makes it more worrying that we do not know now what they think of it all. To say ‘but there is lots of information in the public domain!’ is no answer at all. Many of us want to know what those with particular statutory obligations, funded by public money, have to say about one of the most serious medical scandals involving treatment of children in recent decades.

‘Interesting Times’

The Speech of Sir Andrew McFarlane President of the Family Division

FLBA National Conference: Manchester 16th October 2021

This is a post by Sarah Phillimore.

It is of course an ancient Chinese curse ‘may you live in interesting times’ and thus an intriguing title for this address, which you can read in full here. I propose to consider some selected highlights of what our President sees for the future of the Family Justice System.

First the President sets out what he wants to achieve over the remaining few years of his term. The following items will always be on his ‘to do list’.

  • Delivering the implementation of the long-running Digital Reform Programme for Civil, Family and Tribunals
  • Ensure everyone abides by the recommendations of the Public Law Working Groups.
  • Move the Family Court out of its silo and work effectively with other jurisdictions.
  • Protect and enhance the well being of everyone involved in the delivery of family justice.

Two topics however will demand additional time, focus and resources

  • resolution of private law disputes between parents about caring for their children post separation – this was covered in a previous Key Note address ‘Supporting Families in Conflict: There is a better way’
  • Transparency – the processes by which the Family Court may be made more open so that the wider public may gain a greater understanding of the work done here. I have undergone a sea change in my own approach to transparency – from actively campaigning for more openness, to now grave concerns about many journalists and parents will seek to use information made publicly available. The President will shortly publish the conclusions of the ‘‘Transparency Review’ that has been undertaken during the past year. Unfortunately this delay in publication meant the President felt it would be premature to consider it now.

Therefore the President turned to consider other matters.

The Future of Remote Hearings.

No national guidance will be issued but each local court centre will be trusted to exercise their discretion on a case by case basis and within broad parameters. The President made some comment about these parameters. It is clear that we will not return to the working practices of February 2020. The courts have now become used to remote working and it should be the formal of choice in appropriate hearings. The central theme is that parties and their lawyers should normally be physically present when an important decision is being taken. A clear negative about remote hearings is the absence of that time ‘at the door of the court’ to focus on issues and possibly settlement. But its clear that remote hearings – ‘for the right case’ – are here to stay.

Well Being

The system is currently running ‘hot’ and at a level above its normal capacity. The backlog of work remains high and is increasing. The President is clear that this level of working is not sustainable in the long run. Judges also need downtime and sympathy for late filing of position statements etc is going to be in short supply. He is concerned that orders are now taking days to draft after hearings and containing an over abundance of recitals – a new and ‘unwelcome’ development. Hopefully a Practice Direction will be issued early next year.

Public Law

The recommendations contained in the main report of the Public Law Working Group under the chairmanship of Mr Justice Keehan were launched in April 2021 with the firm expectation that they should be taken up by every local authority in England and Wales by now. The aim is to ensure that cases only come to court when they need to do so and when they are ready to do so in terms of assessments and all other necessary evidence. The big question of whether there is a case for the abolition, or replacement, of supervision orders has been referred to the Law Commission. The sub-group’s deliberations are focussed upon making supervision orders more robust and effective. A final report on this topic, which is expected by April 2022, will include draft Best Practice Guidance. Another sub-group on Adoption has started work with a final report expected later in 2022.

Family Public Law digital programme

The FPL digital programme is now fully operational in 10 of the 43 care centres. Between 10 and 12 further centres will become fully operational next week and it is envisaged that all other centres will join them before the end of the year. Taking up and implementing a substantial new software programme has not been without difficulties, which have been made no easier by doing so during the pandemic when all involved are working beyond their ordinary capacity.

Reform Programme

Looking at the Reform programme more generally, five reformed digital services have now been fully delivered: – Divorce – Financial Remedy Consent – Financial Remedy Contested – Probate – Family Public Law. In addition some 60% of all private law applications are now made online. Over ½ million digital applications have now been made using these services and the level of performance has been transferred: 9 – Divorce now takes 20 weeks from start to finish – Financial remedy consents are dealt with in 3 weeks – C100 applications are going to gatekeeping teams within 2 days of receipt – The FPL provides fully digital files for the judiciary.

Conclusion

The President concluded with words of praise

May I conclude by saying what I have now said on very many occasions. The record of achievement of the Family Court from the very first day of the first Lockdown has been profoundly impressive. Every single individual, be they lawyers, court staff, social workers or judges and magistrates, did their utmost to keep the system going and available for those who turn to us for protection or the resolution of intractable disputes. What has been achieved makes me proud to be part of the Family justice system and one of your number.

It certainly looks as if great strides have been made to embrace new technology and move away from a paper based service which hopefully will not only increase efficiency and but reduce costs. I am certainly pleased that remote hearings are here to stay when it comes to the shorter more administrative hearings. The joys of leaving the house at 5.30am to attend a 20 minutes directions hearing in Plymouth certainly diminished over the years – if those days are gone, I am very glad.

But of most interest to me is what the President wasn’t able to speak about – the Transparency Review and what it will mean for not only how we work in the Family Courts, but how others will be able to discuss how we work. I wish I could say I was filled with delighted anticipation for the forthcoming Review and how it will usher in a new golden dawn of shared information and understanding. Sadly, events of the last few years – most notably the woefully imbalanced ‘Dispatches’ report that could apparently find not a single father to interview – have made me much more pessimistic.

But as ever, I am always happy to be proved wrong. It is clear to me that trust and confidence in the system will not come from simply improved ease of access and IT improvements, but rather that people can be helped to understand the nature of the work that is done and most importantly the inevitable limitations of any system of law to mend broken relationships and emotional dysfunction.

‘The Shake’

On Thursday 4th November 2021 at 7 p.m. we will be presenting by Microsoft Teams a play about a young baby who gets shaken and badly injured whilst in the care of her parents. The family portrayed in the play are involved in care proceedings. The play shows the social circumstances, so frequently encountered in criminal and Family proceedings, which lead to this sort of injury.

The play is graphic, and some may find it distressing. It lasts for about 40 minutes. We show it as an acted play-reading. It has been written be HHJ Wildblood QC. There is no charge for attendance.

After the play, there will be a short talk by Dr Imelda Bennett, Consultant Paediatrician explaining the nature of injuries that are often encountered when a baby is shaken. That will be followed by a short talk by DCI Kristina Windsor about the criminal procedures that may arise and the charging options that may need to be considered. Finally, HHJ Wildblood QC will speak about Family Court procedures and the need for communication between the Family and Criminal proceedings. There will be a chance to send in questions using the Team’s ‘chat’ function.

We estimate that the event will last a total of about 1 ½ – 2 hours. The intention is to improve our understanding of how these distressing injuries can occur and the consequences that may arise for everyone involved. Those attending are asked to turn off their microphones and cameras when joining the Teams link.

The Teams link is here. If you have difficulty joining on the night, please email HHJ Wildblood QC on his email address: st****************@***il.com

If you are attending, please could you send a brief email to Stephen on the above email address so that we have some idea of numbers.

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Children’s Consent to Medical Transition

The Court of Appeal decision in the Bell v Tavistock case.

This is a post by Sarah Phillimore. I will be discussing these issues at a webinar organised by EBSWA on September 30th. Please join us.

https://m.facebook.com/chegender/photos/a.933845336653629/3805107706194030/?type=3&source=54

Summary

Over recent years, considerable debate has arisen over the consequences of medical intervention which aims to allow ‘gender dysphoric’ children to ‘transition’ from the body into which they were born, to better reflect their perceived ‘gender identity’.  There are serious concerns that this kind of intervention is experimental, with no clear evidence base and carries significant risks for the child.

The debate culminated in 2020 with the challenge of Keira Bell by judicial review, against the lawfulness of the decision by the Tavistock and Portman NHS Foundation Trust (‘the Tavistock’) to agree that she could offer valid consent to medical transition, aged 16. The High Court determined that such cases should be brought to court for a ‘best interests’ decision, emphasising how unlikely it was for children under 16 to be ‘Gillick competent’ and therefore able to offer informed consent to medical transition, by way of puberty blockers and cross sex hormones.

The Tavistock appealed in June 2021 and the judgment was published today, September 17th 2021.

In brief, the Court of Appeal allowed the appeal, considering that the High Court had made findings on controversial and disputed facts, which was not the purpose of a judicial review and which is was not entitled to make. The court noted the real danger in situations involving ethical questions coming before the court on disputed evidence which is not capable of resolution in this arena. The court may attempt “to enunciate propositions of principle without full appreciation of the implications that these will have in practice, throwing into confusion those who feel obliged to attempt to apply those principles in practice.” (para 77). The decision about treatment must be made by the clinicians, child and parents. However, the Court of Appeal sounded a clear note of warning at paras 92 and 93 – clinicians must be aware of their ethical duties when determining a child’s informed consent and failure to do so will carry regulatory or even criminal consequences.

So where do we go from here?

The necessary debate about the implications of medical transition for children – particularly as the huge recent surge in referrals of teenage girls strongly suggests some kind of social contagion rather than pressing medical need – has been gravely hampered by a toxic and polarised atmosphere, whereby legitimate concerns about the welfare of children have been actively rejected as ‘bigotry’ or ‘transphobia’. However, in the run up to the first hearing in Bell and immediately afterwards, consideration of the welfare issues for children began to get more serious exposure.

Current NHS advice with regard to puberty blockers and cross sex hormones states that little is known about the long-term side effects of either treatment. Although some claim that puberty blockers are a physically reversible treatment, the psychological effects are not known. There are concerns about potential impact on the brain  or bones. For boys, ‘pausing’ puberty may mean they do not develop enough penile or scrotal tissue to undergo later construction of a neo-vagina. Cross sex hormones may cause irreversible changes to the body – such as breast growth or deepening of the voice and temporary or permanent sterility. 

The National Institute for Health and Care Excellence (NICE) (see ‘further reading’ below) has concluded that any potential benefits of gender-affirming hormones must be weighed against the largely unknown long-term safety profile of these treatments in children and adolescents with gender dysphoria. Other jurisdictions, such as Sweden, Finland and Australia are also raising concerns about the quality of the available evidence. 

The High Court decision

The High Court held  that in order for a child to be competent to give informed consent to puberty blockers, the child would have to understand, retain and weigh the following information:

  • the immediate consequences of the treatment in physical and psychological terms;
  • the fact that the vast majority of patients taking puberty blocking drugs proceed to taking cross-sex hormones and are, therefore, on a pathway to much greater medical interventions;
  • the relationship between taking cross-sex hormones and subsequent surgery, with the implications of such surgery;
  • the fact that cross-sex hormones may well lead to a loss of fertility;
  • the impact of cross-sex hormones on sexual function;
  • the impact that taking this step on this treatment pathway may have on future and life-long relationships;
  • the unknown physical consequences of taking puberty blocking drugs; and
  • the fact that the evidence base for this treatment is as yet highly uncertain.

The Court considered that it was ‘highly unlikely’ that a child of 13 years or younger could give informed consent (the youngest patient referred to the Tavistock for puberty blockers was aged 10 years) and ‘doubtful’ whether a child aged 14 or 15 could. Clinicians were advised to consider seeking court authorisation before treating any child, but that position was clarified in AB v CD & Ors [2021] EWHC 741 (Fam). If child, their parents and the clinician all agreed that treatment was the best course of action then court authorisation was not required. 

The response of the Court of Appeal

The Court of Appeal, comprised of Lord Burnett of Maldon, Sir Geoffrey Vos and Lady Justice King, handed down its judgment on 17th September 2021.

The judgment begins by making it clear that the only issue before the court was the question of whether or not the sanction of the court was needed before puberty blockers or cross sex hormones were prescribed – not whether the treatment itself was lawful. The claimants argued that those under 18 were not capable in law of giving valid consent.

The court notes at para 5 an ‘odd feature’ of the claim – it was not actually the Tavistock who prescribed puberty blockers. It referred children on to either UCH or Leeds which then independently made its own clinical assessment and obtaining valid consent from the child. Neither hospital trust was joined as a party to these proceedings but intervened as it was their prescribing of puberty blockers that was ‘under attack’. In reality therefore, the claim was a challenge to the NHS policy of providing treatment for gender dysphoric children – the gender identity service at the Tavistock (GIDS) is provided as part of the NHS Standard Contract and commissioned by the NHS Commissioning Board in accordance with a service specification.

The High Court did not find any illegality in the policy or practice of the Tavistock, UCH or Leeds. Nor did it agree that the information given to children was ‘inadequate’ – but did express concern about the ability of children to understand and weigh it [para 150]. The claim for JR was not however dismissed; the High Court went on to declare precisely what was required by ‘informed consent’.

The Tavistock appealed on 8 grounds (para 12)

  • Grounds 1 and 2 – the court misapplied the law in Gillick.
  • Ground 3 – the court’s conclusions were inconsistent with the 1969 Family Law Reform Act.
  • Grounds 4 and 5 challenge the conclusion that prescription of puberty blockers for gender dysphoria is “experimental” and that their effects are “lifelong” and “life-changing”.
  • Grounds 6 and 7 – challenge the court’s reliance on expert evidence adduced by the claimants and relying on it to resolve clinical differences of opinion.
  • Ground 8 – that that the approach of the court discriminates against children with gender dysphoria which cannot be justified

From para 15, the Court of Appeal examined the factual background in more detail. From para 24 it sets out the history of the use of puberty blockers.

How did the High Court deal with the law?

The Court of Appeal examined this from para 39. The High Court had concluded that apart from ‘life saving’ treatment, there could be no more profound intervention in a child’s life and therefore it was appropriate for the court to sanction this type of treatment. But the Court of Appeal responded to remind itself that it should be wary of “becoming too involved in highly complex moral and ethical issues on a generalised, rather than case specific basis.” Neither the service specifications nor the standard operating procedures of the Tavistock were unlawful. The House of Lords in Gillick had been very clear that it was for the clinician to decide if a child under 16 could give informed consent to medical treatment. It was unwise for the courts to attempt to put judicial limits on this – the rights of the patients were better protected by the professional standards of the treating clinicians.

How did the High Court deal with the evidence?

The Court of Appeal were unhappy with how the High Court dealt with disputed evidence.

Even from within the evidence filed on behalf of Tavistock, there is an apparent disconnect between the international experience that 1.6% of children who started puberty blockers did not go on to cross-sex hormones and the figures which arose from the random sample, namely that of 49 referred to the Trusts only 27 were approved for or accessed cross-sex hormones. This is one example of the difficulty in drawing conclusions from statistics which are not fully explained or explored in an evidential context where they were peripheral to the legal dispute before the Divisional Court and where any apparent differences were not capable of being tested forensically.

The Court of Appeal agreed with the stated approach of the High Court that a judicial review was not the correct arena for making findings of fact (para 31) or attempting to choose between disputed expert evidence but considered that despite these statements of intent, the High Court had made some factual determinations. See from para 33:

  • It was unusual for a child to be refused puberty blockers because s/he could not consent; instead ‘more information’ was offered.
  • Once a child started puberty blockers they were on a clear pathway to cross sex hormones
  • This treatment was rightly described as ‘experimental’
  • This treatment may support the persistence of gender dysphoria, which would otherwise have resolved

The Court of Appeal were unhappy that the status of the claimant’s evidence had not been resolved by the High Court- it had been adduced without permission and some of it was ‘argumentative and controversial’. A judicial review is simply not the arena to resolved disputed expert evidence and normally the defendant’s evidence would be taken at face value.

There was further discussion of this from para 61. The High Court found the treatment was ‘experimental’ on the basis that there was ‘real uncertainty over the short and long-term consequences of the treatment with very limited evidence as to its efficacy’ – but the Court of Appeal found it would have been better to avoid those kind of ‘controversial’ findings. The same criticisms were levelled at the finding that the overwhelming majority of children would move from puberty blockers to cross sex hormones. The declaration “turns expressions of judicial opinion into a statement of law itself. In addition, it states facts as law which are both controversial and capable of change” (para 80).

As the Court of Appeal made clear at para 64

The point, however, is that these judicial review proceedings did not provide a forum for the resolution of contested issues of fact, causation and clinical judgement….As will appear from what we say in the next section of this judgment, we have concluded that the declaration implied factual findings that the Divisional Court was not equipped to make.

Was the High Court right to make declarations about the nature of the treatment?

Short answer: No. The Court of Appeal examined this issue from para 66, noting that it was the heart of the appeal: the Tavistock arguing that the court “intruded into the realm of decisions agreed upon by doctors, patients and their parents, where the court had not previously gone.” Nor could the Court of Appeal find any example of declaratory relief being granted in a judicial review where the challenge with regard to the law had failed.

At para 70 the Court of Appeal criticised the High Court’s declarations as attempting an exhaustive list of factual circumstances that must be evaluated in seeking consent from a child. But some of the factors identified beg questions to which different clinicians would give different answers. At para 75 the Court of Appeal said:

The evidence of Tavistock and the Trusts was that the treatment was safe, internationally endorsed, reversible and subject to a rigorous assessment process at each stage. It was supported by the service specification, the WPATH guidelines, the Endrocrine Society Clinical Guidelines and explained in the witness statements of Dr Carmichael and Dr Alvi. As we have seen, and as these proceedings have illuminated, there are strongly held contrary views. The declaration would require the clinicians to suspend or at least to temper their clinical judgement and defer to what amounts to the clinical judgement of the court on which key features should inform an assessment of Gillick competence, influenced by the views of other clinicians who take a different view and in circumstances where Mr Hyam accepts that the service specification, which sets out criteria for referring a child for puberty blockers, is not unlawful. 

Both Lords Scarman and Fraser had in Gillick made detailed observations about what they would expect to see from doctors assessing informed consent. But to have turned these into declarations of law would have been inappropriate (para 81).

Was the High Court right to have given guidance that these matters should come before the court?

Short answer: no. The Court of Appeal noted at para 86 that requiring the decision about this treatment to be sanctioned by the court “placed patients, parents and clinicians in a very difficult position”. The guidance would in practice have the effect of denying treatment as many wouldn’t have the resources to make an application and there would be inevitable delay through court involvement. In addition, where child, parents and clinicians agree treatment is in the best interests of the child, it would be inconsistent with the conclusion of the Supreme Court in An NHS Trust (discussed at [49]) to bring the matter to court.

Having made these decisions, the Court of Appeal did not need to consider the issues around discrimination in the final ground of appeal.

Where next?

I do not doubt that gender dysphoria is a ‘real thing’ and causes great suffering. However, I do very strongly doubt that it is as common as current referal rates or social media activity suggests. The majority of children expressing ‘gender variance’ will not wish to ‘change sex’ if left to go through puberty unmedicated.

The Court of Appeal was clear at para 92 that the pre-Bell landscape has shifted and sounds a warning note for clinicians and their insurers.

We should not finish this judgment without recognising the difficulties and complexities associated with the question of whether children are competent to consent to the prescription of puberty blockers and cross-sex hormones. They raise all the deep issues identified in Gillick, and more. Clinicians will inevitably take great care before recommending treatment to a child and be astute to ensure that the consent obtained from both child and parents is properly informed by the advantages and disadvantages of the proposed course of treatment and in the light of evolving research and understanding of the implications and long-term consequences of such treatment. Great care is needed to ensure that the necessary consents are properly obtained. As Gillick itself made clear, clinicians will be alive to the possibility of regulatory or civil action where, in individual cases, the issue can be tested. 

And at para 93:

But it is for the clinicians to exercise their judgement knowing how important it is that consent is properly obtained according to the particular individual circumstances, as envisaged by Gillick itself, and by reference to developing understanding in this difficult and controversial area. The clinicians are subject to professional regulation and oversight.

Keira Bell’s judicial review has failed but she has performed a great service for not only the welfare of children but also the integrity of the medical and scientific community. The High Court blew the lid off the lack of proper evidence in this field alongside the bizarre cementing of an ‘affirmation path’ which confined children on a route to really serious medical intervention, for the rest of their lives. I hope that the discussion generated by both the High Court and the Court of Appeal will finally bring an end to this dangerous climate of fear, where necessary discussion is shut down as ‘transphobia’.

While I am disappointed that there is little reference by the Court of Appeal to the ancient powers of protection that the court exercises over children I can understand the limitations of the judicial review process and the difficulty of trying to determine disputed and controversial evidence within it. I also hope that the medical profession will undertake their duties to properly assess the informed consent of their child patients, without bowing to pressure from political lobby groups.

The signs are hopeful now of more general willingness and openness to discuss these very important issues. The Cass Review was commissioned in 2020 to carry out an independent review into gender identity services for young people. Its terms of reference focus on the assessment, diagnosis and care of children with gender incongruence and will be wide ranging in scope.

I will await the outcome of the Cass Review with great interest. I hope it is going to show that all patients, but particularly children, need services that are insulated from political ideology. ‘Talking therapies’ must assume a greater importance than simply a model of affirmation. This will no doubt place an even greater strain on the existing specialist facilities for ‘gender diverse’ children but the long term impacts on children are too serious to ignore and we must make investment in our children’s mental health a priority. 

First – Do No Harm.

Online comment

The variety and disparity of the online comment immediately generated, underscores for me the need for Parliament to step in and set clear parameters for the age limits for this treatment.

Transgender Trend response

Andrew Tettenborn, Salisbury Review

Court overturns ‘cruel ruling’ Pink News

Gendered Intelligence blog

Further reading

When can a child consent to medical transition? PDF ‘explainer’ from Transgender Trend and EBSWA

‘How do children consent? The interplay of Gillick competence and parental responsibility’ CPR Jan 2020

Age at which child can access transgender hormone therapy in Europe 2017 https://fra.europa.eu/en/publication/2017/mapping-minimum-age-requirements/transgender-hormone-therapy

‘First Do No Harm’ May 2019 presentation at the House of Lords https://2d3aa506-25d9-4c0d-b140-7d13f9421f96.filesusr.com/ugd/1b54b4_32788a07d22f4fa59e2cab0dfc6971cf.pdf

For discussion about the research in this area of the efficacy of the current treatment regimes, see Jesse Singal “How Science-Based Medicine Botched Its Coverage Of The Youth Gender Medicine Debate”

https://jessesingal.substack.com/p/how-science-based-medicine-botched

For an examination of the history of the drive to increase children’s access to puberty blockers and cross sex hormones, see Michael Biggs investigation in 2019 ‘The Tavistock’s experiment with puberty blockers’ https://users.ox.ac.uk/~sfos0060/Biggs_ExperimentPubertyBlockers.pdf

Professors Lemma and Savulescu essay in July 2021 in “To be, or not to be? The role of the unconscious in transgender transitioning: identity, autonomy and well-being” https://jme.bmj.com/content/early/2021/07/29/medethics-2021-107397

National Centre for Health and Care Excellence [NICE] evidence review of puberty blockers https://www.evidence.nhs.uk/document?id=2334888&returnUrl=search%3fq%3dtransgender%26s%3dDate

NICE Evidence review of Cross Sex Hormones https://www.evidence.nhs.uk/document?id=2334889&returnUrl=search%3ffrom%3d2021-03-10%26q%3dEvidence%2bReview%26to%3d2021-04-01

Gender Affirming hormone in children and adolescents BMJ 2019 https://blogs.bmj.com/bmjebmspotlight/2019/02/25/gender-affirming-hormone-in-children-and-adolescents-evidence-review/

The decline and fall of science based medicine Andy Lewis July 2021 https://www.quackometer.net/blog/2021/07/the-decline-and-fall-of-science-based-medicine.html

Organisations/Podcasts

Gender: A Wider Lens podcast. Therapists Sasha Ayad and Stella O’Malley openly consider gender, identity, and transition, 

https://www.youtube.com/channel/UCP62aWWtlZV1oVnbMhTRBcg

Transgender Trend https://www.transgendertrend.com/

An organisation of parents, professionals and academics based in the UK who are concerned about the current trend to diagnose children as transgender, including the unprecedented number of teenage girls suddenly self-identifying as ‘trans’ (Rapid Onset Gender Dysphoria or ROGD). See discussion of the teenage brain https://www.transgendertrend.com/teenage-brain/

Evidence Based Social Work Alliance https://www.ebswa.org/

A group of social workers committed to evidence-based practice, a process that involves open discussion and professional curiosity. 

 

When Facts Don’t Matter

This is a post by Sarah Phillimore

Am I a ‘troll’ or a ‘leading professional’? The answer seems to depend on whether or not I am agreeing with someone’s particular narrative at a particular time, rather than on the quality of my arguments and the state of my evidence.

I have been distracted from the child protection system of late by ever increasing terror at the state of the ‘debate’ over issues of sex and gender and our rights to speak about them. But I haven’t strayed too far from this arena. And there are many similarities; here I find exactly the same kind of damaging rejection of facts in pursuit of what appears to be a religious fever that corrupts meaningful discussion. There is the exact same pushing of a precooked and preconceived narrative to achieve a campaigning end – truth, facts and the welfare of children be damned.

So what’s happened now to provoke an irritated blog post? There has been a clear build up over several years now of a campaign to persuade law and policy makers that the family court system is a tool of misogynistic oppression, which is designed to ‘hand over’ children to violent men and punish women who dare allege that they have been abused. The campaigners scored a considerable victory with the Ministry of Justice ‘Harm Report’ in June 2020. I have set out my concerns about this report and its conclusions here; in brief it was argued on the basis of self selected ‘lived experience’ that the ‘pro contact culture’ of the family courts meant that children were not protected from the invariably male domestic abusers.

However, the Court of Appeal put the brakes on with their decision Re H-N and Others (children) (domestic abuse: finding of fact hearings) [2021] EWCA Civ 448 which I wrote about here. Many campaigners appeared to be expecting a wholesale demolition of the family court system and recognition that judges simply couldn’t be trusted to even identify domestic abuse, let alone be aware of case law and practice directions about how to deal with it. But the Court of Appeal concluded:

We are therefore of the view that PD12J is and remains, fit for the purpose for which it was designed namely to provide the courts with a structure enabling the court first to recognise all forms of domestic abuse and thereafter on how to approach such allegations when made in private law proceedings. As was also recognised by The Harm Panel, we are satisfied that the structure properly reflects modern concepts and understanding of domestic abuse

But the campaigners weren’t daunted. They came back fighting with a Dispatches documentary ‘Torn Apart’ which aired on July 20th 2021. It’s basic message seemed to be that ‘parental alienation’ wasn’t a real thing, but rather a strategy of vile abusing men to ensure that children were ‘torn apart’ from their loving mothers, at the behest of the criminally incompetent and dysfunctional family court system.

‘Parental alienation’ is a phrase to describe what happens when a child is effectively brainwashed by one parent to refuse contact with the other. It’s a real thing, that sadly men and women do to their children, it causes immense emotional harm and there is a wealth of case law about it. I have written about it here and here if you want to read more. In the minority of really intractable cases the court may order the children to be removed from the alienating parent, either into foster care or to live with the other parent. This is done because the court’s primary duty is to secure the welfare of the child, not to ‘punish’ or ‘reward’ either parent.

If you haven’t seen the documentary, watch and make up your own mind. I will just share a few of the comments I received via email after it aired, from lawyers, psychologists and parent campaigners.

My main complaint is the imbalanced reporting.  Orders for transfer of living arrangements are not common and usually made only at the end of years of litigation, expert and guardian involvement and probably multiple ‘second chances’ for mum (using the example in the documentary).  It was not made clear WHY the Judge had felt a transfer of living arrangements to be in these children’s best interests.

For me it was the failure to acknowledge that PA is actually a real thing.  It is not a gendered issue. Mother’s were represented but not as targeted parents.  Father’s were not represented at all. Grown up children who were alienated as youngsters were not represented.  A balance of expertise was not represented.  It erased the experience of a whole cohort of children, parents and extended families, for whom PA is real, and that was utterly devastating

It’s all very well to use actors in re-enactments, but it was far from clear as to what was real and what was not in this film.  And to use such highly emotive language, tone and even screams with no indication of how much of each is just an artist’s impression rather than an accurate representation of what actually happened. Even mum crying about her babies is unlikely to have been filmed at the time, so the whole thing – and it is the emotional impact that is the issue under consideration – could be entirely misleading.  This is a far cry from a voiceover to maintain anonymity.  Were the kids even real? Surely if they were, this would be breaking the disclosure law? Surely too they could have mocked up dad’s side a little too?  What about giving some indication as to why the judge made the decision in the first place – not exactly a common decision…  This is all way outside any public broadcasting, balanced reporting and truth exposé characteristics previously associated with C4.  Fake news/nudge territory here.  Not even creative!

There was also extensive coverage in newspapers and on social media. I will just highlight one of the articles, written by one of the contributors to Dispatches, a Dr Charlotte Proudman. What makes Proudman’s contribution all the more remarkable is that she is a family law barrister. Yet she felt able to say this, writing in the Guardian on 21st July 2021 under the headline Our family courts are allowing perpetrators to use the bogus idea of ‘parental alienation’ to gain access to their victims.

I have watched, horrified, as parental alienation has become the go-to litigation tactic, often used by domestic abusers to discredit allegations made against them by their ex-partner. Although parental alienation can be raised by either parent, overwhelmingly I see it being deployed as a counter-allegation by fathers when mothers try to prove they or their children have been subjected to abuse.

That may be Proudman’s experience. It certainly isn’t mine, nor that of the many others who have expressed their views via email. I would like to have discussed this with Proudman, but she has blocked my Twitter account, even when she relies on me as a ‘leading professional’ later in the article.

I suspect I am only a ‘leading professional’ because she wishes to cite a letter I wrote to the President of the Family Division about the need to change the rules to prevent unregulated experts from giving evidence in children cases. This is particularly important in cases of parental alienation as often the choices for children are very bleak; leave them to suffer emotional harm or try to remove them and risk a different kind of harm. So its important that we can trust the experts who offer the court their expert opinion. I do not trust any expert who choses not to be subject to external regulation.

I unfairly criticised Proudman for saying the President had refused to consider it; I had hoped that it was simply on the back burner until COVID was over. But she was right, the Family Procedure Rules Committee refused to take action on 8th February 2021 and no one had the courtesy to even let me know. I think this is a mistake and an example of where the family justice system doesn’t help itself. But it does not justify or explain Proudman’s comment that then followed, that this refusal left ‘victims – primarily mothers – and children at risk.’ Unregulated experts are a risk to us all. This isn’t a men versus women situation.

Nor do I accept that the concept of parental alienation is ‘bogus’ or ‘junk science’ as Proudman asserts – I have seen it too often over 20 years.

The article ends in unhelpful hyperbole

The dangerous label of parental alienation is now the single biggest threat to the credibility of victims of domestic abuse, and to the voices of children. It gives validation, power and control to perpetrators. Any court that countenances unevidenced allegations of parental alienation is potentially sanctioning abuse. Sadly, it may take a tragedy before anyone will actually listen.

I suggest that the single biggest threat to the credibility of victims of domestic abuse are the enthusiastic attempts by campaigners like Proudman to remove certain behaviours from scrutiny. Mothers are just as capable of hurting their children as fathers and a failure to recognise this or even actively deny it, promotes giving moral authority to child abusers – something I have argued that the ‘DV Sector’ seem particularly keen to do.

No court should countenance ‘unevidenced’ allegations of parental abuse. Every case where I have dealt with allegations of parental alienation these were anxiously scrutinised over far too many months, leadings to the bitterly ironic situation where the alienation became further entrenched and the harm to the child even greater. Proudman is a barrister. She ought to understand above all the importance and the centrality of evidence in family cases. She ought not to be an enthusiastic proponent of a false narrative that paints the family court system as a frankly insane circus.

There is a great deal wrong with the family court system. It is in crisis. Of that there is no doubt, and I have considered it here, here, and here.

But what it does understand is evidence. Ours is a system which puts ‘proof of facts at its heart’. Children are not ripped from the arms of loving mothers on a whim or to punish them for daring to alleged the father is abusive. The court operates to protect the welfare of the child as its paramount consideration. And often it fails. But this is not because of deliberate misogyny or ignoring evidence. It is for the same dreary, unsexy reasons that many systems fail – because it is the wrong system for the problem at hand. Many family disputes revolve almost entirely around issues which are beyond the court’s reach – the psychological dysfunction of the parents, their emotional pain, their fear, their poverty, their substance abuse, their lack of employment or housing. There are simply not enough judges to make sure that cases are heard quickly enough to prevent nascent alienation hardening into full blown significant emotional harm to a child. And this situation has been made even worse by the backlog caused during lockdown.

So what’s the solution? I don’t know. We really need to rip it up and start again. The system is not serving either parents or children. But it is never, ever any solution to allow single issue campaigners to bend the ear of law and policy makers to promote the banging of their own particular drum. We have to look at the facts, not promote one ideology over another.

So until this is done, I will remain Schrodinger’s barrister – simultaneously both a ‘troll’ and a ‘leading professional’, depending on who is listening. But it is not my views that change, only the extent to which some are prepared to accept challenge to a preconceived narrative. I can only hope for better things.

Children’s contact with father in prison – who decides?

Z v Z (Contact in Prison) [2021] EWFC 47 (07 June 2021)

This case concerned two children aged 16 and 14 whose father was in prison after being convicted in 2012 and sentenced to 26 years for really serious sexual offences against children, including possession of 20,407 images ranging from Level 1 to Level 5 on the COPINE scale (“Combating Paedophile Information Networks in Europe” – a scale used to measure the severity of child sex abuse images). The children hadn’t seen him since his arrest in 2011 – they were initially told he was working abroad. The father protested his innocence but the Judge commented at sentencing that he was ‘devious and manipulative’ and posed a serious risk. The father was subject to a Sexual Offences Protection Order which placed serious limitations on his contact with children, even his own.

The father wanted to have contact with the children. He applied for both direct and indirect contact but by the time the matter came to court, the argument was about indirect contact which the mother and the Children’s Guardian supported. However, the Prison Governor did not, citing public protection and suggested that the prison might not facilitate contact even if was ordered by the Family Court as being in the children’s best interests. Therefore both the Prisoner Governor and the Secretary of State of Justice became intervenors in the case.

In public law proceedings in May 2012 the court made what appeared to be a final order, prohibiting the father from having contact with the children and even directed the mother’s solicitors to write to the prison to say there should be no contact from the father to the children, mother and maternal grandmother. The father requested in 2016 to be allowed contact and an assessment in 2017 recommended indirect contact. The prison then undertook a multi agency risk assessment and refused to permit ANY contact between father and children. The prison were not clear how the indirect contact could be managed and noted that the mother shared the father’s belief in his innocence. The prison tried to clarify the terms of the final order of May 2012 and whether contact between the father and children would be a breach of its terms.

But in March 2021 the prison confirmed they were NOT in agreement as the risks were just too high – the father had not undertaken any work to address his understanding of his offending, the mother did not provide a safeguard and the children were arguably more vulnerable to grooming now as teenagers. The father was described as ‘dangerous and predatory’. The prison went so far as to say that even if contact was ordered, the prison could not facilitate it as contrary to public protection and prison policy. The mother argued that the children understood the severity of the situation and the need to safeguard themselves; they understood about grooming and in any event would fairly soon be able to have contact as adults.

What approach did the court take?

The court recognised that this subject matter was likely to generate strong views. But the task of the court was to decide if indirect contact was in the children’s best interests, considering the welfare factors set out in the Children Act 1989 section 1(3). No one argued that the children and the father did not have a right to a family life so any breach of that would have to be proportionate.

The next question was whether the Family court could compel a prison governor to comply with an order to facilitate contact with a child and a serving prisoner. The answer to this question was ‘no’ – to do so would be inconsistent with the terms of the Children Act and the wider statutory scheme relating to the management of prisons and prisoners. In essence, the Family Court cannot make a contact order against a public body. This position was set out in Re M (Children) (Contact: Enforcement of Foreign Order) [2018] Fam 230. Parliament granted the Secretary of State of Justice control over prisons – see the Prison Act 1952 and the Prison Rules 1999 (as amended by the Prison (Amendment) (No.2) Rules 2000.

The Secretary of State has a discretion to permit a prisoner to communicate with any person outside the prison and to receive communications and also the power under s34(1) of the Prison Rules to restrict such communications if it is necessary, on the grounds of public safety, the protection of health or morals. Such discretion must be exercised proportionally.

Other relevant statutes are the Children Act 2004; section 11 places a duty on prison governors to safeguard and promote the welfare of children. Under s325 of the Criminal Justice Act 2003, the governor has a duty to assess and manage the risk of violent and sexual offenders. Rule 4 of the Prison Rules 1999 also provides for respect to the need for special attention to be paid to maintaining the relationship between the prisoner and his family.

Within this context, the National Offender Management Service Public Protection Manual 2016 stipulates that it is ultimately the prison governor who makes the assessment as to whether contact is safe, and will examine static and dynamic risk factors.

The case law also demonstrated where the boundary between the jurisdiction of the Family Court and the jurisdiction the Secretary of State – for example in CF v Secretary of State for the Home Department and another [2004] EWHC 111 (Fam), Munby J (as he then was) recognised that the court did not have power to determine if a mother was allowed to remain in prison with her child.

None this prevents the Family Court making an order for contact but the implementation of any such order cannot displace the statutory powers of the Secretary of State for Justice. The fact that the Family Court has made an order will be a ‘significant and relevant consideration’ for the Secretary of State, through the prison governor but the final decision as to whether and how the order is implemented will rest with the Secretary of State.

It is possible to challenge a decision to refuse to facilitate contact via judicial review – see Westwater v Secretary of State for Justice [2010] EWHC 2403 (Admin) where the initial risk assessment was held to be inadequate.

The court decided that it was in the children’s best interests to make a contact order – they both expressed the clear view they wanted to see their father. They had demonstrated some understanding of their father’s offences and why he was in prison. They did not have a dogmatic view of his guilt or innocence. Both were aware of the risks of child sexual exploitation. The court found that both children had an emotional need for some contact with their father, both being at the stage in their development when they are able to question their identity and explore who they are. In particular it was important that they be given the change to have such contact now, before reaching the age of 18 when they would not have the support proposed while they remain children.

The court did not however make a final order – not as an attempt to influence the governor, who had helpfully indicated a further review of the position re contact, but to recognise that if the contact order was not implemented then the court might need to further consider the children’s welfare.

In praise of Bristol Pro Bono

In 2020 the Bristol Pro Bono Network finally became a reality, after years of thought and planning from those who knew that the enthusiasm and talent of Bristol lawyers needed better direction so that it could more easily reach those who needed it. I am writing this post as an unashamed plug; I was shocked at a recent meeting to be told that if you search ‘free legal advice in Bristol’ the BPBN doesn’t appear – I have just checked and it isn’t on the first page of google search results. I am hoping that by writing this blog post and linking to the site, I may increase its chances of being found.

And I think it is definitely worth plugging.

The mission of the group is to identify unmet legal need, support the delivery of pro bono advice and share best practice.

We are passionate about access to justice. We encourage lawyers to work with local universities and community groups to deliver free legal advice to individuals who don’t have access to legal advice. Bristol Pro Bono Group works collaboratively to identify not-for-profit organisations working in the public interest who need legal help.

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What is pro bono?

The BPBN follows the definition of pro bono used by TrustLaw (found here). In essence – it is legal work done by qualified lawyers, for no fee. ‘Pro Bono’ is taken from the Latin phrase ‘pro bono publico’ – for the good of the public. The Latin phrase is almost certainly a problem in engaging with a wider audience as it isn’t immediately clear what it means, but it is likely we will never shake it now – ‘free legal work’ doesn’t have quite the same ring.

Pro bono work can never be a substitute for a proper system of publicly funded legal services, and some lawyers object to offering pro bono services in case this undermines the commitment of Government to provided proper funding. However, the BPBN believe, as do I, that lawyers have the responsibility to use their professional skills to do their bit for society. The Legal Aid Sentencing and Punishment of Offenders Act 2012 removed legal aid from a large range of civil matters, including disputes between parents about seeing their children. This was apparently in the the expectation that such parents would seek mediation to resolve their differences, but such expectations were dashed. Such private law applications are increasing year on year and leading to a huge rise in the number of litigants in person. I have written year about the types of clients who use the Bristol Family Law Scheme which started in 2015 and is part of the BPBN.

This is how it looked in 2017, from 246 clients.

English as a second language65 26%
Likely to be in person199 80%
Mental health problems36 14%
Substance abuse39 16%
Learning difficulties or literacy problems31 13%
Immigration difficulties13 5%
Child abduction14 5%
Violence or sexual abuse of adult or child130 53%
Previous proceedings91 37%
Leave to remove17 7%
Current criminal proceedings10 4%
Reference to other agencies42 17%

It is a poor reflection on our society that such a client base has no ability to pay lawyers privately and no access to Government funded legal aid. Pro Bono work is a small drop in that ocean of need but I think it is important. Not just for the individual who may be helped but for the lawyer who offers help – something outside the daily grind of billable hours, a chance to connect and strengthen our bonds of community.

So if you are in the Bristol area and need legal help, check out the website and the services it offers. The BPBN can offer help in the following areas.

  • Welfare benefits 
  • Not-for-Profit assistance
  • Housing advice 
  • Employment and discrimination advice
  • Family advice
  • Asylum and immigration advice

And hopefully next time I try, we may have made it to page 1 of the Google search results!

The silence of the Children’s Commissoners

This is a post by Sarah Phillimore

Children’s Commissioners were established by Part 1 of the Children Act 2004 following recommendations made by Lord Laming in the Victoria Climbie Inquiry.  Victoria died in February 2000 after months of appalling ill treatment by Marie-Therese Kouao and Carl John Manning. This was despite Victoria being known to at least two housing authorities, four social services departments, two child protection teams of the Metropolitan Police Service (MPS), a specialist centre managed by the NSPCC, and had been admitted to two different hospitals because of suspected deliberate harm. The Inquiry found an urgent need for more effective inter-agency co-operation and sharing of information about children.

The Commissioner has statutory obligations to to encourage decision makers to take children’s best interests into account, along with powers to gather data and to enter premises. The Children and Families Act 2014 further strengthened this remit. The Commissioner operates with a team of staff, and works with various advisory and children’s groups, stakeholders and specialists.

All four offices of the UK Children’s Commissioners work closely to promote and safeguard the rights of children and young people in the UK, including submitting joint reports on the status of children’s rights in the UK to the UN Committee on the Rights of the Child. 

So one might assume that the recent decision of Bell v Tavistock and the implications for children would be something within the remit of the Children’s Commissioner?

I looked at the websites of the four Commissioners in turn. 

Looking at the Northern Irish Children’s Commissioner’s website https://www.niccy.org/about-us/ it has 8 ‘High level Corporate objectives’ (HLCOs) including HLCO 5 – Children’s right to health and protection from violence or abuse

Searching the site for ‘Keira Bell’ ‘The Tavistock’ or ‘Puberty blockers’ returned no results. A search for ‘transgender’ produced three. A blog from 2015 commenting that it was difficult for transgender children to feel safe as who they were, approving comment in November 2019 on the publication of the Guidance for Schools, EOTAS Centres and Youth Service on Supporting Transgender Young People by the Education Authority, and then way back in January 2004 Comments By The Commissioner For Children And Young People At The Launch Of The Youthnet Report “Shout” On The Needs Of Young People In Northern Ireland Who Identify As Lesbian, Gay, Bisexual Or Transgender where the then Commission Nigel Williams commented: 

… we are simply talking about the freedom to discover who you are, what your identity is and to do that without being bullied, without being verbally abused, without being so tortured by society’s attitude that you contemplate suicide.

So the linking between homosexuality and transgender identities goes back a very long way indeed, thus cementing the idea that a child who identifies as transgender is simply discovering their authentic self.

The English Children’s Commissioner https://www.childrenscommissioner.gov.uk/ describes her role as: 

She speaks up for children and young people so that policymakers and the people who have an impact on their lives take their views and interests into account when making decisions about them.

She does this by first gathering evidence: talking to children and young people, requesting information from public institutions and then carrying out research and compiling information on the wide range of things that affect children’s lives.

She is the ‘eyes and ears’ of children in the system and the country as a whole and is expected to carry out her duties ‘without fear or favour’ of Government, children’s agencies, and the voluntary and private sectors.

I searched the English site for the terms ‘Keira Bell’ ‘Tavistock’, ‘puberty blockers’ and ‘transgender’. There were no results for any term. Let’s have a look at Scotland https://cypcs.org.uk/. Nothing found. Wales? https://www.childcomwales.org.uk/ Nothing. 

 This was a surprise. Considering the remit of the various Children’s Commissioners I had expected at least some comment. However, it is clear that at least some of the Children’s Commissioners had been giving this matter some thought after I was contacted by someone who had made a Freedom of Information Request to the Scottish Commissioner. 

 FOI request to the Scottish Children’s Commissioner

A request was made on 7th January 2021 to the Children and Young People’s Commissioner Scotland for information held on the Keira Bell High Court judgment of 1st December 2020:

1.    Correspondence and other relevant material between the Commissioner/staff and other UK Commissioners/staff

2.    Internal communications between the Commissioner and staff

3.    External communications from the Commissioner’s staff to external organisations. 

This was refused and an internal review of that refusal was sought on 30th March 2021 on the basis that:

  1. It is in the public interest to disclose the information that was withheld
  2. The reasons for refusing disclosure were not credible
  3. There has been stalling at every turn and information released only when pressed
  4. This goes against the spirit of transparency and openness 

This was also refused on 27th April 2021 relying on the statutory exemptions to disclosure that would cause ‘prejudice to effective conduct of public affairs’. The reasons for refusal are worth examining. 

There was an email chain showing that the Children’s Commissoner for Wales had forwarded to the Scottish Commissioner a request for legal advice in relation to the Bell v Tavistock judgment. The Scottish Commissioner commented in its refusal to disclose:

‘The rights of transgender children and young people in the UK is a highly sensitive matter and the Bell v Tavistock judgment is currently under appeal and therefore a live legal issue. The Chldren’s Commissioner for Wales chose to share with us their initial legal advice with an expectation that this would not be disclosed beyond the officer of the Children and Young People’s Commissioner Scotland’

The concern was that disclosure of this advice would ‘substantially inhibit’ collaboration between the various Commissioners and this would be ‘material and substantial’ prejudice. 

The Scottish Commissioner did not dispute the public interest in the issues raised by the Bell judgment. But that nature of these issues and the manner in which they are discussed were a strong argument against disclosure. 

Regarding the Keira Bell judgment, a safe space is essential due to the extremely and unusually toxic nature of the debate around these issues, which are regarded by individuals on both sides of the debate as impacting on existential matters of personal and group identity.

Such concerns had been raised before, in a response to the Gender Recognition Reform (Scotland) Bill Consulation:

All those participating in the debate should be  mindful of the need to keep the discussion focused on the issues and on the law rather than personalising them. Failure to ensure that these conditions exist is, in our view, highly unlikely to result in effective, rights compliant law and poses a serious risk to the rights and interests of many children and young people

I don’t disagree with that at all. But it is concerning to see this used as an argument to REFUSE to share correspondence and advice between the various Commissioners’ offices. Surely there can be no chance that these communications would inflame tensions by using abusive language? Surely they are simply focusing on the law and ensuring it is compliant with children’s rights?

It seems likely that there have been some ‘robust’ views by various members of staff as the letter of refusal goes on to say 

‘…public bodies must be mindful of their positive obligation not to inflame matters. It is therefore imperative that any public comment by our office (or Wales) is very carefully drafted to avoid exacerbating this toxic environment for children and young people. This means we must ensure we can discuss, debate and consider issues from several angles before deciding whether to make public comment on them, and what the nature of that comment should be’

Reliance was also placed on claims of confidentiality of communications between a legal adviser and their client, and disclosure of personal information. 

So all that we know is this. On 9th December 2020 Sally Holland from the Welsh office forwared to Bruce Adamson in Scotland an email from Rachel Thomas saying ‘not sure when you’re speaking to Bruce about this case’. The next three paragraphs are redacted as exempt from disclosure. The email ends ‘If you’d rather me speak to Bruce about it to save you getting up to speed on it all I’d be happy to so – appreciate he might want a Commissioner discussion of course but the offer is there if it assists’. 

On 16th December 2020 emails were then exchanged between members of the Scottish officer to say ‘yes, let’s discuss. I’m clearer on what he’s looking for now I think’. Then a heavily redacted email which ends ‘Can we discuss tomorrow please?’

Conclusion

I have some sympathy with the need to exempt from disclosure material which represents the necessary ‘to and fro’ as people raise, discuss and refine issues of importance. I also understand the importance of maintaining confidentiality around legal advice. But it is very concerning that an organistion with the status of a Children’s Commissoner is clearly concerned that the nature of the discussion within its organisation and with the other offices may risk contributing to the ‘toxic nature’ of the debate. How could this be possible given that all who work there must be alive to the need ‘to keep the discussion focused on the issues and on the law rather than personalising them’?

I suspect there are two problems here. Given the nature and extent of institutional capture in the UK, individual staff members may have gone way beyond a focus on the law and engaged in moral castigation of those ‘hateful bigots’ who would seek to impede a child’s identification of their ‘authentic selves’. OR there is a realistion that simply commenting on the relevant law will be seen and seized upon by many as a ‘hateful’ ‘bigoted’ attack on the rights of an ‘exceptionally vulnerable’ minority. 

The person who made the request will now take it to the ICO. I will be interested to know if the reasons for refusal are upheld – I suspect they will be. It is fair enough to note that Bell v Tavistock will be the subject of further hearing before the Court of Appeal at the end of June. The time for detailed and thoughtful comment from the Commissioners will be when they have had time to process and understand the decision. 

But the comments made in the refusal letter are worrying as we see that the toxicity of this debate is clearly having a damaging impact on the ability of many to discuss the actual law and its impact on children. The ‘toxicity’ of course I believe comes from one ‘side’ only – the side which did not wish to discuss any of this, the side which cried ‘no debate’ at every opportunity, the side which is happy for children to submit to experimental medical treatment with long term consequences in order to support the validation of adult decisions about their ‘gender identity’. 

Victoria Climbie was tied up in a bin bag and left to die in a bath. After her death the doctors examining her could find not one part of her body that was left unmarked. She was murdered by two adults who were supposed to be looking after her and no one did anything to help her until it was far too late. Adults do terrible things to children. Sometimes they tell themselves that what they are doing is right and proper. Children need ALL of us to step up and protect them, and we ought to be confident in the reliance we place on those statutory bodies who are under legal obligation to do so. I hope that very soon after the Court of Appeal judgment in Bell v Tavistock– which ever way it goes – we will see clear commentary and recommendations in a joint report from all four of the Commissioners.