Author Archives: Sarah Phillimore

Depriving Children of their Liberty

This post began as a talk I gave for White Paper Conferences in February 2021 looking at the complex issues, both legal and practical, around deprivation of liberty orders for children of all ages. I will continue to update it.

The importance of freedom of movement.

Your freedom to come and go as you wish is very important and has been a protected right for centuries. From the ancient common law remedy of ‘habeus corpus’ we now look to Article 5 of the ECHR – everyone has the right to liberty and security of person. Being deprived of your liberty can only be lawful:

if you consent to it, or someone else is allowed to consent on your behalf, or
there is an existing legal framework that allows it, or
you apply to the court for a declaration that its lawful.

Deprivation of liberty means that someone is under continuous supervision and control and is not permitted to leave. It doesn’t make any difference if the conditions are pleasant or necessary. It is defined by using the criteria set out in the case of Storck v Germany 43 EHRR 96, as confirmed in 2014 in the case of Cheshire West and Chester Council v P [2014] UKSC 19, [2014] MHLO 16

Confinement in a particular restricted place for more than a short period of time
lack of valid consent
attribution of responsibility to the State.

An obvious example of lawful deprivation of liberty is sending someone to prison after conviction of a criminal offence.

The current legal situation regarding depriving children of their liberty is a complex mixture of common law, the inherent jurisdiction, statute and European law. Although a child is defined as a person between 0-18, children aged 16 and over are treated differently to younger children.

We need to look carefully at the reasons behind any decision to restrict a child’s liberty in order to identify the correct route to ensure that any detention is lawful. Sadly for family practitioners, The Children Act 1989 does not specifically address mental disorder, does not provide specific powers to enforce treatment, and does not provide specific safeguards for the rights of the detained patient. Family lawyers therefore may have to come out of their comfort zones when dealing with a case where a child needs to be deprived of their liberty. It may be that the family court is not the right place for such decisions to be made.

Why might a child be deprived of their liberty?

There are a variety of reasons why a decision is made to deprive a child of liberty.

In some circumstances, you can consent to your own confinement. Regarding children, parents may exercise ‘parental responsibility’ which means they are able to offer their own consent when a child cannot. The younger the child the less likely it is that the acceptable ‘zone of parental authority’ will be controversial – for example, when parents consent to a five year old receiving medical treatment. However, it has long been accepted by the courts that parental responsibility is a ‘dwindling right’ that diminishes as the child grows in age and understanding. Parental responsibility must also be exercised in the best interest of the child.

Once a child reaches the age of 16, they are treated differently to younger children – for example, they are presumed to be able to offer consent to medical treatment as if they were an adult. But what if a 16 year old does not have the mental capacity to make decisions? Can a parent then consent to a deprivation of liberty on their behalf? The short answer is no.

The Supreme Court in D (A Child) [2019] UKSC 42 (26 September 2019) held that a parent could not consent to deprivation of liberty once a child was 16, even if the child lacked capacity. Logically this should extend to younger children and require careful examination of what falls within the normal ‘zone of parental control’. The key question was Do the restrictions fall within normal parental control for a child of this age or do they not? If they did not, Article 5 was engaged and the parent could not consent on the child’s behalf.

However, as an indication of the complexity in this area and reasonable scope for disagreement, the court was split 3:2. The majority of those in support agreed that deprivation of liberty involved a fundamental human right and it could never be within the boundary of acceptable exercise of parental responsibility to deny a child a fundamental human right. Further, the court restated the principle set out in Cheshire West, that the living arrangements of the mentally disabled had to be compared with those of people who did not have the disabilities which they had. They were entitled to the same human rights, including the right to liberty, as any other human being. Even if they were deprived of their liberty for the best possible motives, they were still entitled to the protection of Article 5 so it could be independently ascertained that the arrangements were in fact in their best interests.

But, its interesting to consider one of the minority judgments. At para 151 Lord Carnwath said this:

Later in [Lady Hale’s] judgment (para 48) she reinforces that view by equating deprivation of liberty with other “fundamental human rights” such as the right to life or freedom from torture. She argues that it would be a “startling proposition” that it lies within the scope of parental responsibility to authorise violation of such rights. I say at once, with respect, that I am not persuaded that such comparisons are fair or helpful. D’s parents were not authorising the state to commit torture or anything comparable to it. They were doing what they could, and what any conscientious parent would do, to advance his best interests by authorising the treatment on which all the authorities were agreed. That this involved a degree of confinement was an incidental but necessary part of that treatment, and no more than that. On the President’s view, with which I agree, they were not “authorising a violation of his rights”, but rather exercising their parental responsibility in a way which ensured that there was no such violation.

So it looks as if there is scope for that argument to be potentially revived. The case of Re J: Local Authority consent to Deprivation of Liberty, [2024] EWHC 1690 (Fam) is interesting. This concerned J, a 14 year old with complex disabilities, including autism and ADHD. He lived in a care home with a high level of restrictions. The court was concerned as to whether a DoLs order was required and if so, could the parents and the LA consent to it?

The court considered that in reality for J ‘imposing the restrictions sought is inevitable, unavoidable and overwhelmingly in his best interests’. The LA were concerned that it could not consent to J’s confinement, in light of the Supreme Court’s decision set out above. But the court referred to Lincolnshire CC v TGA [2022] EWCH 2323 and held that parents could consent for a child under 16 if the child was not Gillick competent and there was no dispute that deprivation was in the child’s best interests. The court rejected the argument that the LA could not consent as it was an organ of the State and therefore any deprivation of an individual’s liberty had to be by a procedure prescribed by law and subject to independent checks. The court did not agree that because the LA imposed the restrictions, it could not consent to deprivation as a corporate parent, pointing out that parents could consent to life changing medical treatment which was just as important a decision as one involving deprivation of liberty, and did not carry with it a requirement that the court intervene.

Therefore the LA should simply have regard to the ‘core test’ under section 33 (3)(b), is the decision one of ‘such magnitude’ that it cannot be made by the LA but must be made by court.

The Judge concluded

Therefore the decision to “deprive him of his liberty” is not in my view a decision of such magnitude as to fall outside the LA’s powers, but rather an exercise of their statutory duties to him. In my view the LA have the power to consent to the restrictions and therefore to the deprivation of his liberty, and no DoLs order is needed.

Necessary treatment for mental illness

A child can be compelled to accept treatment for a mental disorder under the Mental Health Act 1983 or consent to their own informal admission to hospital for treatment section 131(2). Detention under the Mental Health Act provides the child with a number of important safeguards, such as the right to appeal against detention and a duty to ensure an age-appropriate environment (s 131A).

Necessary protection for the mentally incapacitated

The Mental Capacity Act 2005 applies only to children aged 16 or over. If a child over 16 lacks capacity to make decisions about their care or where they live, the Court of Protection can make these decisions for them (see section 16 (2) (a) MCA). This can allow, under sections 4A(3) and (4), that any one can deprive the child of his or her liberty if that is done to give effect to an order made under section 16 (2)(a). As Charles J made clear in Re NRA & Ors [2015] EWCOP 59 at para 41, this is a ‘best interests test’ so any ‘care package’ that imposes a deprivation of liberty is unlikely to be in a child’s best interests unless it represents the least restrictive interference that is appropriate.

The Court of Protection jurisdiction runs concurrently with the inherent jurisdiction, as confirmed in Re D by Lady Black.

The Mental Capacity Amendment Act 2019 inserted a new Schedule to the MCA to set out a new administrative scheme for the authorisation of deprivation of liberty in order to enable care or treatment of a person who can’t consent. Under Schedule AA1, a ‘responsible body’ will be able to authorise arrangements giving rise to a deprivation of a person’s liberty in any setting, if satisfied that the necessary conditions are met, including that the arrangements are necessary and proportionate to prevent harm to the person and proportionate in relation to the likelihood and seriousness of harm to the person. This is now in force – see Part 2 Practice Direction 11A. In essence, it allows judges to decide non-contentious applications ‘on the papers’. It is emphatically not a ‘rubber stamping’ exercise but allows for the ‘judicial antennae’ to be alert to any particular issues of concern in the case.

Once an authorisation has been given, there are a number of safeguards put in place for the person which include regular reviews of the authorisation by the responsible body or care home and the right to challenge the authorisation before the Court of Protection.

But note what the court have said abut the ‘streamlined’ procedure for 16/17 year olds in KL (A Minor: deprivation of liberty) [2022] EWCOP 24 . The court noted that the ‘streamlined’ procedure had not been developed with 16/7 year olds in mind, who are at a critical stage of their development and at the unavoidable cusp of transition from children’s services to adults’ services. Such cases are likely to require greater scrutiny from the court and local authorities would be unlikely to face criticism if they asked the court to make the orders and declarations needed at an attended hearing, where the child was represented.

There may be further changes ahead – as the Judge discussed in KL above, the ‘streamlined’ procedure may be replaced by a new scheme of ‘Liberty Protection Safeguards’ also introduced in the 2019 Act. There is no date yet for the implementation of the LPS but if they come into effect they will apply to people aged 16 or over and will not be restricted to arrangements in a care home or hospital. If LPS are implemented this will render the ‘streamlined’ process redundant and non-contentious authorisation of deprivation of liberty will become an administrative procedure. The court will retain a role to determine any challenge to the suitability of this procedure but at the moment it is not clear which court would carry out this function – there is a Working Group of the Court of Protection considering all this. Watch this space!

Detention by the police

See section 38 of Police and Criminal Evidence Act 1984. The custody officer must secure that any arrested child is moved to local authority accommodation unless it is not practical to do so, or once the child has reached the age of 12, that no secure accommodation is available and keeping him in other local authority accommodation would not be adequate to protect the public from serious harm.

Secure accommodation under the Children Act 1989

Use of section 25 of the Children Act 1989 and the accompanying regulations is a lawful way of depriving a child of liberty but it has proved not to be a ‘straightforward’ statutory provision. The inherent jurisdiction can be used to ‘fill the gaps’ but the courts are very clear – If section 25 applies it must be used as it provides statutory safeguards for the child. See Re X, Re Y [2016] EWHC.

This route has to be endorsed by court order; the consent of any party is not relevant – Re T (A child) (Secure Accommodation Order) [2018] EWCA Civ 2136.

The Regulations set out various safeguards for the child, such as ensuring that parents are informed and that the deprivation of liberty is regularly reviewed.

In essence, section 25 operates to make deprivation of liberty lawful if the child is subject to a care order or is ‘looked after’ by the LA under section 20 of the Children Act 1989 and:

the child has a history of absconding and is likely to abscond from any other description of accommodation; and
if the child absconds they are likely to suffer significant harm; or
if not placed in secure accommodation, the child is likely to injure themselves or another person.

Relevance of the child’s age

A child younger than 13 can only be placed in secure accommodation if this is authorised by the Secretary of State under Regulation 4 – unless the child is 12 and has been arrested by the police.

If the child is 16 or older and lacks capacity under section 2 of the Mental Capacity Act, then the Court of Protection is the more appropriate venue. See B v RM MM AM [2010] EWHC 3801 for further consideration about transfer to and from the Court of Protection and Family Court.

If a child is over 16, a SAO can be made for children who are ‘looked after’ by way of a care order or under section 20(3) of the CA 1989. Under s 20(3) every local authority shall provide accommodation for any child in need within their area who has reached the age of sixteen and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation.

An alternative route could be to rely on the court’s inherent jurisdiction which is theoretically limitless, but cannot be used to circumvent section 100 of the CA, i.e. to put a child in the care of the LA or provide accommodation for the child. Therefore, as made clear in A City Council v LS & Ors (Secure Accommodation Inherent Jurisdiction) [2019] EWHC 1384 (Fam) the inherent jurisdiction could not be used to place a 17 year old who was not subject to a care order nor looked after by the LA.

Scotland and Wales

Wales now has a separate regime for secure accommodation under s.119 of the Social Services and Wellbeing (Wales) Act 2014 (“SSW(W) 2014”), although the provisions are substantially the same as under s.25 of the Children Act 1989.

A shortage of available secure accommodation in England lead to some children being placed in Scotland. This caused some problems about jurisdiction. Just because an order is lawfully made in England, does not mean it automatically is lawful in Scotland. See the judgment of the President of the Family Division in Re X, Re Y [2016] EWHC 2271 (Fam), para 1.

This problem has now been dealt with by The Children and Social Work Act 2017, Schedule 1 which simply amends section 25 of the Children Act to extend it to Scotland.

An application of last resort

This is a serious application and should only be made when there is no alternative – for example, it should never be used to punish a child for running away or being a nuisance. The courts have confirmed it is an order of ‘last resort’

If there isn’t a court order a child can only be held in secure accommodation for 72 hours every 28 days: see Children (Secure Accommodation) Regulations 1991, reg. 10. If the court makes an order, the first order can be made for an initial maximum period of 3 months and after that for further periods of up to six months. Time starts running from the date of the order.

Once the order is made, it can’t be discharged unless the order was made incorrectly. If the child’s circumstances change and the local authority think the secure accommodation order is no longer needed the courts have decided that the way forward is to apply for a writ of habeas corpus under RSC Order 54 . If the parents and the local authority disagree about whether or not it is still needed, the parents can make an application for judicial review.

How will the child make his wishes known to the court?

Under section 25(6) the court can’t consider making a secure accommodation order if a child is not legally represented in court, unless the child decides not to apply for legal representation.

However, the court should usually appoint a guardian to represent the child under section 41(1) of the Children Act. The guardian will speak to the child and will give instructions to a solicitor; this will allow the court to say that the child is legally represented.

The guardian will recommend to the court what he thinks is in the child’s best interest, but the child’s welfare is NOT the ‘paramount consideration’ in these proceedings.

Rule 12.14 (3) of the Family Procedure Rules 2010 gives the court power to exclude a child who wants to attend court if it is in their interest to do so and they are represented although Rule 12.14(4) requires the court to give the guardian, the child’s solicitor and child, if of sufficient understanding, the opportunity to make representations about the child’s attendance.

When deciding whether or not a child should come to court, the starting point should be an evaluation of the consequences of attending or not attending upon the child’s welfare taking into account the following factors. See Re K (A Child) [2011]

the age and level of understanding of the child
nature and strength of the child’s wishes
the child’s emotional and psychological state
the impact of influence from others
the matters to be discussed
practical and logistical considerations – how far would child have to travel?
the impact on proceedings – is the child likely to need to be restrained in court? If so that is usually a sufficient ground to refuse to allow the child to attend.

Issues to consider when applying for a secure accommodation order

There have been many practical difficulties in applications for secure accommodation and the courts have had to look very carefully about what ‘secure accommodation’ means, the relevant criteria under section 25 that justify the order, to what extent the child’s welfare is considered in the balance and the over arching demands of proportionality.

The complex interplay of various statutory provisions must then be seen in the context of the nationwide shortage of accommodation which is designated as ‘secure’ to meet the necessary statutory requirements.

The case of B (Secure Accommodation Order) [2019] EWCA Civ 2025, tackled these questions head on. The court was very concerned that the lack of designated secure accommodation meant that the court was increasingly being asked to use its inherent jurisdiction to make it lawful to deprive a child of their liberty.

The court took a wide ranging review of available case law and considered submissions from the Association of Lawyers for children and set out the questions that a court must ask and answer before making a secure accommodation order. See para 98.

(1) Is the child being “looked after” by a local authority under section 20 of the Children Act 1989 or, alternatively, does the child fall within one of the other categories specified in regulation 7 (which are children accommodated by health authorities, NHS trusts, local educational authorities and children in residential care homes or nursing homes).

(2) Is the accommodation where the local authority proposes to place the child “secure accommodation”, i.e. is it designed for or have as its primary purpose the restriction of liberty?

(3) Is the court satisfied (a) that (i) the child has a history of absconding and is likely to abscond from any other description of accommodation, and (ii) if he/she absconds, he/she is likely to suffer significant harm or (b) that if kept in any other description of accommodation, he/she is likely to injure himself or other persons?

(4) If the local authority is proposing to place the child in a secure children’s home in England, has the accommodation been approved by the Secretary of State for use as secure accommodation? If the local authority is proposing to place the child in a children’s home in Scotland, is the accommodation provided by a service which has been approved by the Scottish Ministers?

(5) Does the proposed order safeguard and promote the child’s welfare?

(6) Is the order proportionate, i.e. do the benefits of the proposed placement outweigh the infringement of rights?

However, this did not end the confusion of many practitioners and required further guidance from the President of the Family Division in February 2020. This guidance focused on the discussion by the Court of Appeal about the definition of ‘secure accommodation’ which was found to be “any ‘accommodation designed for, or having as its primary purpose, the restriction of liberty’”

However, the President was clear that this does not mean that an application to place a child in such a unit must be determined via a s 25 secure accommodation application and he referred back to the questions asked and answered in the Court of Appeal judgment, stating that question 4 was the ‘clincher’.

“It follows that, although an unregistered and/or unapproved secure placement may come within the definition of ‘secure accommodation’ within s 25, that accommodation cannot satisfy item (4) in the ‘relevant criteria’ with the result that a s 25 order cannot be made to authorise placement in that unit. In such a case any court approval would need to be sought under the inherent jurisdiction.

The bottom line is that Re B does NOT signal a need for the court to use s 25 to process applications for deprivation of liberty in a unit which is unapproved by the Secretary of State as ‘secure accommodation’. Such applications should continue to be considered under the inherent jurisdiction. If the s 25 criteria are met, then, of course, s 25 should be used.

The inherent jurisdiction

If section 25 doesn’t apply then the courts could rely on the inherent jurisdiction which is in theory a ‘limitless’ power of the High Court to make decisions if there is an apparent ‘gap’ in the statute law.

The case of Wakefield Metropolitan District Council & Anor v DN & Anor [2019] EWHC 2306 (Fam). Mr Justice Cobb provided a clear overview of how the inherent jurisdiction is used to authorise a deprivation of liberty of a vulnerable adult.

The court has found there is jurisdiction to make an order with regard to a 17 year old under the court’s inherent jurisdiction, given the extraordinary circumstances of that case. See Re B (Secure Accommodation: Inherent Jurisdiction) [2013] The judge accepted the submission that the inherent jurisdiction of the High Court is theoretically limitless and in circumstances where the statutory code under section 25 is satisfied in relation to a 17-year old child (with the exception of the requirement that the child is looked after by the local authority), it is open to the court to exercise its inherent jurisdiction to direct that a child be detained in secure accommodation.

However, A City Council v LS & Ors (Secure Accommodation Inherent Jurisdiction) [2019] EWHC 1384 (Fam) points out there are problems when there is no care order as the inherent jurisdiction used when a child is 17 would have the effect of ‘grant[ing] authority to the local authority to accommodate a child where the local authority would not otherwise be able to do so under the statutory scheme’

The court considered that Re B ought to be treated with caution.

First, the requirements of s 100(2) do not appear to have been the subject of detailed argument before the court. Second, whilst the court appears to have entertained doubts about whether the child could be said to be accommodated at [9] to [14], and to have perceived the significance of an answer in the negative, no final conclusion appears to have been reached by the court on that issue. Third, and importantly, before coming to its decision the court does not appear to have been referred to the decision of the Court of Appeal in Re E (A Child). Within this context, I am satisfied that there are reasons to doubt that Re B (Secure Accommodation: Inherent Jurisdiction)(No 1) was correctly decided

In re T (A Child) (Secure Accommodation) [2018] EWCA Civ 2136, the court was clear that it is fundamentally unsatisfactory that many young people were being placed in secure accommodation outside the statutory scheme in units that by definition had not been approved by the secretary of state as secure children’s homes.

The appellant, T, was a 15-year-old child who was subject to a care order. The local authority wished to place T in secure accommodation but there were no places available in any registered secure children’s homes. So the LA applied to the High Court for orders under its inherent jurisdiction authorising T’s placement in non-statutory accommodation. T had consented to the restrictions on her liberty in the placements sought and submitted that the orders restricting her liberty were unnecessary. The Court of Appeal found that consent was not a relevant issue for the exercise of the inherent jurisdiction. T appealed to the Supreme Court, wishing to be recognised as capable of consenting in law.

The Supreme Court was asked to consider the following issues:

In circumstances where insufficient places are available in registered secure children’s homes, is the exercise of the inherent jurisdiction to authorise a child’s placement in unregistered secure accommodation lawful?
If it is, what legal test should the courts apply when determining whether to exercise the inherent jurisdiction?
Is a child’s consent to the confinement of any relevance when determining whether to exercise the inherent jurisdiction?

JULY 30th 2021 – Judgment handed down

The Supreme Court dismissed the appeal and determined that use of the inherent jurisdiction IS permissible but expressed grave concerns about its use to fill gaps in the child protection system, due to lack of resources. The child’s consent or lack of it did not determine the decision about whether a deprivation of liberty was permissible. Placement of a child in unregistered or unregulated accommodation must be a temporary solution, only if no other alternative available and reflects a ‘scandalous lack’ of provision. The full judgment is here

Children’s homes and unregulated placements

The difficulties and tensions in relying on the inherent jurisdiction in this area, is the extent to which this may undermine a statutory or regulatory framework to make sure that accommodation provided for children by the state is fit for purpose and that the child’s rights are protected. As a general rule, the more an area of law is controlled by statute and regulations, the more extreme the circumstances must be to justify the use of the inherent jurisdiction.

The Supreme Court noted the distinctions between ‘secure accommodation’ ‘children’s homes’ and ‘unregulated placements’

Secure accommodation is a secure children’s home, designed and developed as such and approved by the Secretary of State for such use (the court comment at para 134 that it is ‘hoped’ no such homes would be in use without approval of the Secretary of State but that it was theoretically possible). This involves a ‘locked setting’ with a ‘custodial complexion’ – i.e. locked doors and windows, perimeter fences, high quality digital CCTV.

A children’s home is defined as a place that provides care and accommodation wholly or mainly for children (excluding hospitals and most schools). Under the Care Standards Act 2000 and accompanying regulations, children’s homes must be registered and it can be a criminal offence under section 11 of the Act to run an unregistered children’s home

The Supreme Court found that this does not relieve the court from authorising placing a child in an unregistered placement if a failure to do so risks breach article 2 of the ECHR (the right to life) where there must be absolutely no alternative and the child or someone else is likely to come to grave harm if the court does not act (para 145). This must not be seen as the court authorising a criminal act. Practice Guidance issued by the President of the Family Division in 2019 made it clear that if a child is placed in an unregistered children’s home then steps must be taken immediately to secure registration and keep the court informed of the registration process, which the court must oversee. If registration is refused and the home continues to operate, this does raise a risk of criminal prosecution.

An unregulated placement is one that is NOT a children’s home, as it doesn’t meet the definition of providing accommodation wholly or mainly for children – for example, a caravan or outward bound centre. The court was doubtful that such places could ever be suitable to deprive a child of liberty.

Regulation 27 of the Care Standard Act Registration Regulations 2010 puts a duty on a LA who is placing a child in unregulated accommodation to be satisfied that the accommodation is suitable. A new Reg 27A comes into force in September 2021 which limits the circumstances in which the LA can place a child under 16 in unregulated accommodation.

Section 22C(6)(d) deals with placement of children by the LA when they cannot be safely or practically placed with a parent or other person with PR. The LA then have to find a placement that it considers ‘the most appropriate’. This can be with a friend or relative, a foster carer, a registered children’s home OR subject to section 22D ‘placement in accordance with other arrangements which comply with any regulations made for the purposes of this section’.

Section 22D confirms that a LA can make arrangements to place a child in an ‘appropriate placement’ when it is necessary and required as a matter of urgency.

Regulation 27A provides that a LA may only place a child under 16 in accommodation in England ‘in accordance with’ other arrangements under section 22C(6)(d) of the Children Act 1989 where the accommodation is in a

a care home, defined by section 105(1) of the Children Act 1989 as the same definition as the Care Standards Act – an establishment is therefore a care home if it provides accommodation and nursing/personal care for persons who are or have been ill, who have or have had a mental disorder, who are disabled or infirm and who are or have been dependent on alcohol or drugs
a hospital (defined by section 275(1) of National Health Service Act 2006
a residential family centre as defined in section 4(2) of Care Standards Act
A school, defined by section 4 of the Education Act 1996
a holiday scheme for disabled children, as defined in Reg 2(1) of the Residential Holiday Schemes for Disabled Children (England) Regulations 2013

To summarise; the court will need to know, if a child can’t be placed with family or foster carers:

is the proposed placement is a children’s home – which must be registered or immediately applying for registration
OR one of the establishments set out above in Regulation 27A for a child under 16
OR if no children’s home or regulation 27A placement is available for a child under 16, if its urgent and necessary then the court may authorise a placement outside the regulations, in order not to be in breach of article 2 ECHR (right to life).

However, it is clear that no family court can override the operation of the criminal law so it remains to be seen what kind of risk of criminal prosecution would be faced by those operating unregulated placements. Hopefully a defence of necessity would be available. It is therefore very important that LA follow the Supreme Court guidance about what evidence the court needs to authorise an unregulated placement under the inherent jurisdiction.

See paras 155 and 172: the court must have evidence about

If the placement is a children’s home, is it registered? If not registered, application must be made without delay and the court will oversee this process. If registration is refused but child remains in the placement then risk of criminal prosecution is more likely.
the provider of the service has confirmed it can meet the child’s needs
the steps the LA are taking to assure itself that the premises and those who work there can give safe and suitable care
the proposed regime
justification of why proposed regime is necessary and proportionate
the child’s views

Lord Stephens says at para 178:

I agree with Lady Black that recourse to the inherent jurisdiction in the fact of this scandalous lack of provision should be a temporary measure… I add my name to the list of judges who have called attention to this issue which is a scandal containing all the ingredients for a tragedy

See also the case of Tameside MBC v L (Unavailability of Regulated Therapeutic Placement) [2021] EWHC 1814 (Fam) where the court decided that it remains open to the High Court to use the inherent jurisdiction to authorise the deprivation of liberty of a child under 16, where the child will be living in a placement which is outside the statutory or regulatory scheme, provided that everyone followed the President’s Guidance of November 2019 entitled Placements in unregistered children’s homes in England or unregistered care home services in Wales and the addendum thereto dated December 2020.

The court set out the relevant principles to be applied in such cases:

It remains open to the High Court to authorise under its inherent jurisdiction the deprivation of liberty of a child under the age of 16 where the placement in which the restrictions that are the subject of that authorisation will be applied is prohibited by the terms of the Care Planning, Placement and Case Review (England) Regulations 2010 as amended.
In deciding whether to grant a declaration authorising the deprivation of liberty, the existence or absence of conditions of imperative necessity will fall to be considered in the context of the best interests analysis that the court is required to undertake when determining the application for a declaration on the particular facts of the case.
Whilst each case will turn on its own facts, the absence of conditions of imperative necessity will make it difficult for the court to conclude that the exercise of the inherent jurisdiction to authorise the deprivation of the liberty of a child under the age of 16 in an unregulated placement is in that child’s best interests in circumstances where the regulations render such a placement unlawful.
It is not appropriate to define what may constitute imperative considerations of necessity. Again, each case must be decided on its own facts.
The court must ensure the rigorous application of the terms of the President’s Guidance, which will include the need to monitor the progress of the application for registration in accordance with the Guidance. Where registration is not achieved, the court must rigorously review its continued approval of the child’s placement in an unregistered home. Ofsted should be notified immediately of the placement. Ofsted is then able to take immediate steps under the regulatory regime.

The Judge said

However, I can observe that, in the experience of this court, the prohibition on placing children under the age of 16 in unregulated accommodation contained in the amended statutory regime is not coming into force on 9 September 2021 in the context of local authorities choosing to utilise such placements for vulnerable children in great need. Rather, it is coming into force in the context of local authorities having no choice but to employ such unregulated provision due to the well-recognised acute lack of appropriate provision.

Exercise of the inherent jurisdiction if a placement is in Scotland

The placing local authority will need to make application to the Scottish Court of Session within six weeks of the placement starting under the ‘Nobile Officium’ procedure, which will enable the English order to be approved by the Scottish courts. These applications appear to proceed without opposition but the LA will probably need to instruct a firm of solicitors in Scotland to make the application.

So what happens if a child under 16 is placed in an unregulated placement but there is no issue of deprivation of liberty?

I think this is an interesting and important point and at some time soon, the court is going to have to grapple with it head on. I had to deal with this issue in a recent case and gave the following advice to the local authority

The background

The Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021 prohibit placing a child under 16 in an unregulated or unregistered placement.
The courts have directed a great deal of energy and attention to those cases where an unregulated/unregistered placement for a child under 16 involved a deprivation of liberty (DoL), deciding that the court may authorise the DoL using the inherent jurisdiction (IJ) but this does not operate as a defence to any criminal proceedings that then arise because of the unlawfulness of the placement itself.
The courts have been asked to consider the application of the IJ more widely, but have refused. I note the reasons given in Tameside; the parties had insufficient time to prepare their arguments and the wider issue did not need to be determined in that particular case.
An issue arose in these present proceedings of a child who was too young to be subject to a DoL. At his young age, restriction of his liberty to safeguard him is within ‘zone of parental authority’ and does not require court authorisation.
This child was placed in an unregulated and hence unlawful placement. The court was asked to authorise this placement pursuant to the IJ and this was refused on the basis that the case law did not support this. The court suggested that urgent application was made to the High Court if the local authority wished to pursue that argument. The local authority did not consider it proportionate to do so, given that the unlawful placement would be ending soon.

The problem

The local authority is acting unlawfully in placing a child under 16 in such a placement. There is no ambiguity about this. The will of Parliament is clear. The reasons behind the law are also clear. We must be able to trust that placements for vulnerable and traumatised children are safe and well ordered.
However, the court is willing to make a care order even when the order sought is underpinned by an unlawful placement.
I think this raises doubt as to the legality of the care order itself. A care order should not be made to achieve an unlawful end. If the care order is made because in reality there is no other option but to keep the child safe, even though by so doing the will or Parliament is subverted, then this needs formal recognition by the court, using the IJ to authorise what the local authority is doing.
This ensures that the proper focus is kept on the decision to effectively ‘endorse’ an unlawful placement. I appreciate it cannot be offered as a ‘defence’ to any subsequent criminal or regulatory proceedings, but I suggest that the necessary analysis which underpins any operation of the IJ would be powerful evidence to advance as a reason of public policy why a prosecution should not proceed.
I am firmly of the view that by refusing to consider the exercise of the IJ in a case of this nature, this risks
- the safety of the child
- the integrity of the court process and respect for the rule of law
- making the local authority and other organisations more vulnerable to legal action

The Tameside case

MacDonald J in Tameside MBC [2021] EWHC 2472 (Fam) sets out a number of broad and general principles regarding the IJ which ought to be raised in cases of this nature.

The Secretary of State conceded [para 4] that where it is necessary to place a child in a particular place in order to prevent a breach of Art 2 or 3 rights, the local authority has a power, and possibly a duty, to place the child there. There is a ‘positive operational duty’ to protect life [para 66].
Where an area is ‘populated by intense statutory regulation’ the IJ should only be used in cases where there is a high degree of necessity [para 65]
The court must identify the legislative intent to exclude the IJ and should be slow to hold that an inherent power has been abrogated or restricted by Parliament [para 70]
The IJ has ‘seminal importance’ in respect to children [para 69], playing ‘an essential role in meeting the need as a matter of public policy for children to be properly safeguarded’.
As recognised by Lady Black in the Supreme Court [para 77] it is ‘unthinkable’ that the High Court could not use its prerogative powers to protect a child where otherwise the child is at risk of significant harm
Local authorities are not choosing to break the law, but have no other choice. There are simply not enough secure, residential or foster placements for children who have no where else to safely be [para 93].

In short, I do not understand why the High and Supreme Courts are willing to grapple so minutely with issues of deprivation of liberty in unregulated or unregistered placements, but are not willing to grapple with the issue of the placements itself. The court is thus prepared to make a care order which is underpinned by an unlawful placement. A care order is also a draconian order, which breaches article 8 rights. I appreciate that the local authority did not consider it proportionate in this case to make further representations to the High Court and I do not disagree with that position. But I am sadly confident that this issue will not be restricted to this one case and it will at some point soon have to be taken head on.

Refusal to make a deprivation of liberty order

In An NHS Trust v ST (Refusal of Deprivation of Liberty Order) [2022] EWHC 719 (Fam) the court refused to authorise further deprivation of liberty for a 14 year old who ended up in hospital not due to any medical need but because her family could no longer cope with her violent behaviour and frequent absconding. She was subject to 4:1 supervision by staff on five day rolling contracts which meant she was unsettled and afraid by frequent changes of staff which led to further deterioration in her behaviour. She was admitted to hospital in February 2022 but no application was made to authorise the deprivation of her liberty until March 2022. The court found the placement in hospital was ‘brutal and abusive’ and offered not a single positive for the child – there was no plan for educational provision, no ‘exit plan’. The court refused to authorise continuing deprivation of liberty at the hospital, commenting

it is deeply uncomfortable to refuse authorisation and to contemplate future uncertainties that will now pertain for ST. However, ST is now a looked after child and the local authority must find her an alternative placement pursuant to its statutory duty to provide accommodation for her and to safeguard and promote her welfare whilst in its care, under Part III of the Children Act 1989.

The local authority then provided a bespoke placement for ST and applied for authorisation to deprive her of liberty in that placement.

Beware ‘mission’ creep. In the case of Peterborough City Council v Mother & Ors [2024] EWHC 493 (Fam) (06 March 2024) the court was asked to determine if a severely disabled child was deprived of liberty due to the actions of the state, or as a consequence of the severe disabilities. The court determined that it was the latter, saying at para 31

This is a case where the LA’s application takes the principles set out in Cheshire West to a logical but extreme conclusion that, in my view, defies common sense and is not required by the terms of the Supreme Court decision. It is important to note that Cheshire West was concerned with the three individuals’ inability to consent to the deprivation of their liberty, and their apparent compliance with the restraints placed upon them. They were all physically capable of leaving the property, and would have been stopped if they had tried to do so. That is not the facts of the present case.

The polarising of parental alienation

This is the text of a talk I gave at a Stowe Family Law Webinar on 24th February 2021. I discussed the often stark polarising views about parental alienation and how parents can attempt to navigate the court system. I stress that I am NOT talking about cases were one parent has been found to have caused serious harm to either the other parent or the child – these are not cases of ‘parental alienation’, these are cases where the abusive parent is rightly kept away from the children. But allegations that are not proved are not facts and cannot be used to justify denying contact with another parent.

Parental alienation – the development of the ‘two camps’ and how the court will manage these cases.

What does ‘parental alienation’ mean and how has it developed?

I use the term ‘parental alienation’ to mean when one parent acts without good reason – either deliberately or unconsciously – to persuade a child to think and act negatively towards the other parent to the extent that the child rejects any form of relationship with that other parent.

Dr Childress puts it this way: ‘If a child is rejecting a parent, one parent is abusing the child. It is the duty of the court to find out which it is”

I could talk for hours about the development of ‘parental alienation’ as a concept. It has generated a huge amount of ‘research’ and discussion. But I do not want to get bogged down in arguing about labels. There are many in the ‘pro PA’ camp who are very keen for there to be a definition of PA in the Domestic Abuse Bill. I am afraid to say I think this is an example of ‘magical thinking’ – that by simply defining a term, gives the courts the effective tools to change behaviour.

What is crucial is that we identify the behaviour of some parents, its impact on the children and what we can do to get these very serious cases dealt with as quickly and fairly as possible. Time really is of the essence in such a situation; the more time that passes, the less likely you are to restore any relationship between child and alienated parent.

The ‘two camps’ of thought.

Sadly, in so many areas of life and law, our ‘public debate’ appears to descend into pushing and shoving between two distinctly opposed groups.

Group one call for greater recognition of the prevalence of parental alienation and the harm it does. For example, in 2020 Good Egg Safety CIC produced a report about parental alienation and its impact, concluding that parental alienation was:

A devastating form of ‘family violence’ with psychological abuse and coercive control at its heart

Of the 1,513 who responded to the survey, parental alienation was a live issue for 79% of respondents who were split 56% male, 44% female. 80% experienced an adverse impact on their mental health, 55% an adverse financial impact. 58% saw court orders breached.

But Group Two either denies the existence of parental alienation or claims it is a ‘charade’ or a ‘tool’ used by abusive men to hide their abuse. This view has some very high profile support, including the Victim’s Commissioner for London who tweeted in approval on February 4^th an article which demands ‘parental alienation’ must not be defined as ‘abuse’ in the Domestic Abuse Bill.

The power of PA is that it seems like a reasonable concept; you can imagine scenarios where one parent acts to exclude another. Yet PA has instead become a smokescreen, a tactic to obfuscate custody hearings and garner sympathy from judges and custody evaluators who may have an instinctive suspicion towards women. Its objective is to make abusive men the victims and protective mothers the perpetrators. Although PA proponents use gender-neutral language, empirical studies have demonstrated that its impact is gender-specific.

This is quite an odd article – the language used is alien to the English court system – ‘custody’ and ‘custody evaluators’ – and the author is an academic in Australia. This is perhaps ironic considering the reasons why England and Wales abandoned the terms ‘custody’ and ‘access’ in the Children Act 1989, due to fears that this type of language increased the risk that parents would see children as property, to be passed back and forth like parcels. Needless to say, I do not agree with what the article says.

It is a great shame that we have ended up in these polarised camps. I have been a family lawyer since 1999. I have dealt with 100s of private law cases, acting for mothers, fathers and children. I have absolutely no doubt, because I have seen it many times, that mothers and fathers act to deprive the other parent of a healthy relationship with their child and do this for no good reason. And equally, there is no doubt that some abusive parents will use claimed parental alienation as a smoke screen for their own abusive behaviour. But the latter does not negate the existence of the former.

So how do the courts identify parental alienation?

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

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

Two more recent authorities are;

Transfer of residence of child from mother to father – RH (Parental Alienation) [2019] EWHC 2723 (Fam) (03 October 2019)
Re S (Parental Alienation: Cult) [2020] EWCA Civ 568 – child ordered to live with father if mother continued to refused to give up her adherence to a ‘harmful and sinister’ cult.

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

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

What factors operate AGAINST proper resolution of cases involving parental alienation?

‘Structural problems’

You must be aware of the way the court system is structured that operate against effective resolution. It is clear that an adversarial court environment is not a good place for angry or frightened people to be. Even the physical environment of many courts operates to reduce the chances of effective negotiation and compromise, with no where private to sit and talk. Of course, remote hearings don’t make any of that any easier. But on a positive note the findings of the Nuffield Observatory indicate that the perception at least of such hearings is that they are fair most or all of the time.

The key point is that the courts are overwhelmed and never more so than now.

There is a huge backlog of cases throughout the system and urgent public law cases will get priority. So dire is the current situation that recently HHJ Wildblood QC felt it necessary to publish a judgment warning parents off coming to court to argue about trivial matters ,such as the precise location of pick up and drop off. See: B (A Child) (Unnecessary Private Law Applications), Re [2020] EWFC B44 (25 September 2020).

The problem is that mostly these arguments are not about handovers at all – they are simply a manifestation of many years of emotional pain, frustration or desire to control – all of which can feed into the developing situation that is very serious and risks causing significant harm to the children.

It’s always good to remember that the courts are pre-disposed to want you to go away. There may be initial resistance to identifying a case as a serious example of risked emotional harm. You must hit the ground running with a clear case, effectively presented.

Lack of objectivity

It is rare – I would say impossible – for any case to involve someone who is 100% a victim of another’s behaviour. Clients must be encouraged to look with realism about their own contributions to any breakdown in the adult relationships and do what they can to mitigate this. A key responsibility for us as lawyers is not to engage personally and I know this is often difficult to guard against when we feel instinctive sympathy for a client denied any relationship with his or her children for no good reason that we can see.

However I am often taken aback by the tone of correspondence I see between solicitors. It is clear that anything that operates to increase the emotional tension between the parties is likely to prolong and exacerbate existing difficulties.

Delays in finding of fact hearings.

It seems likely that most cases will require a finding of fact. These are not cases where the alienating parent is likely to ‘let go’ of any allegations and the court will need a firm basis on which to proceed if considering a change of residence.

And do not wait until the outcome of the fact finding to consider the next steps. Some cases will require input from the LA as to whether they will consider care proceedings and provision of foster placement. Be ready to make the request for a section 37 report.

Lack of exit plan

So you have navigated the fact finding process and a court has determined that the child’s residence needs to change. Depending on the length of time a child has been alienated and the degree of opposition expressed, you may need expert help on the ground. This will require careful thought as there are sadly many examples of when attempts to change residence went wrong – one example is Re A (Children) (Parental alienation) [2019] EWFC

There is a serious problem is the shortage of available expert practitioners in this field and risk that those who do operate are partisan. Check CVs carefully! Do not instruct anyone who purports to offer psychological help but who is NOT subject to scrutiny by any external regulator.

What about costs?

I have only had two cases in my career where costs were ordered against a parent (both mothers) who were found to have deliberately obstructed the court process. I have no evidence to support my feeling that this may become an increasing trend, but be aware of the potential for a costs argument and be ready to make it. And don’t – as I did! – neglect to consider the rate of interest to be attached to a cost order and the time from when it starts running.

Basic principles.

Costs orders in children’s cases are exceptional but possible.

The Family Procedure Rules adopt most of the costs rules of the Civil Procedure Rules with one important distinction. FPR r 28.2(1) disapplies r 44.2(2) of the CPR; being the ‘general rule’ that the unsuccessful party will pay the costs of the successful party. There is thus no general assumption in family proceedings that ‘costs follow the event’. The general rule is instead that parties have a ‘clean sheet’ i.e. there is no presumption as to whether or not there will be a costs order.

The Judge retains a general discretion to make a costs order in family proceedings– as set out in primary legislation (see s51(1) SCA 1981) and repeated at r28.1 FPR.

The conduct of the parties is a relevant factor at CPR r44.2(4)(a), which is not disapplied by FPR r 28.3. ‘Conduct’ is further defined at CPR r44.2(5):

conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction – Pre-Action Conduct or any relevant pre-action protocol;
whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
the manner in which a party has pursued or defended its case or a particular allegation or issue;
whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim.

See principles derived from Re R(A minor) [1996] EWCA Civ 1120 and In the matter of S (A Child) [2015] UKSC 20 :

The child’s welfare is paramount, the court adopts a quasi-inquisitorial approach and there are many possible outcomes;
The court generally needs to hear from both parents: ‘no one should be deterred by risk of having to pay other sides costs from playing their part in helping the court achieve the right solution’;
The court can assume that the parties are not generally motivated by malice;
The parties need to work together and one should not be stigmatised as ‘the loser’;
Costs orders can reduce funds available to the family.

How does the court identify ‘unreasonable conduct’ which would make it appropriate to order costs?

The Court of Appeal in R (a Minor) considered it in this way:

Of course, the parties should not be deterred by the prospects of having to pay costs, from putting before the court that which they genuinely think to be in the best interests of the child, but there have to be limits. Children should not be put through the strain of being subject to claims that have very little real prospect of success… in other words there was conduct in relation to the litigation which goes way beyond the usual sort of attitude which a concerned parent shows in relation to the future of his child’.

The decision in Re R has been followed and endorsed in a number of cases; for example, see Re F (Family Proceedings: Costs) [2008] EWCA Civ 938 and G (Children) [2013] EWCA Civ 1017.

The court does not need to make a finding that the party acted maliciously or in deliberate bad faith; a party may genuinely believe their actions are reasonable but in reality they are not.

In G (Children) cited above, a costs order was upheld against the father because it had not been necessary for him to ‘launch these proceedings’ and the proceedings had been used as a vehicle for ‘getting at the mother’. There was ‘absolutely no merit’ in the case bought by the father. Thus the father had acted unreasonably both in starting the proceedings but more importantly in the way he had conducted himself throughout the proceedings.

Sarah Phillimore

St Johns Chambers

20^th February 2021

The court’s power to restrain unreasonable behaviour

An interesting recent case is A Local Authority v TA & Others [2021] EWCOP 3. It discusses the law around recording court hearings and shows the wide power the court has to restrain a litigant’s unreasonable behaviour in the wider court process.

This case concerned an elderly woman, GA, who has dementia and was represented by the Official Solicitor. She was cared for at home by her adult son TA. The court was concerned about the negative impact on the proceedings by the actions and conduct of TA and examined two issues

If TA should be permitted to record the court hearings
the extent to which the court had power to restrict his communications with the court office.

Background

In March 2019 the local authority responsible for meeting GA’s needs under the Care Act 2014 brought proceedings under the Mental Capacity Act 2005.

TA wanted to record the hearings, essentially for his ‘own protection and benefit’ as the local authority employees were ‘pathological liars’ and he had suffered bullying and intimidation from ‘many’ judges. He also objected to the costs of a transcript and pointed out the common delays in obtaining one.

TA’s application was opposed on the basis that the widely recognised default position against recording should be recognised and there was a risk that TA would publish the recordings on the internet, as he had done in the past.

The Judge advised TA that it was possible to be supported in the court proceedings by a McKenzie friend or the services of ‘Support Through Court’. TA could apply to the court for a transcript and in exceptional circumstances, such as wishing to correct an inaccuracy in the transcript, could listen to the official audio recording. (Practice Direction: (Audio Recording of Proceedings: Access) [2014] 1 WLR 632 (considered and confirmed recently in Dring v Cape Intermediate Holdings Ltd. [2019] UKSC 38) at [25]). The Judge indicated he would not grant permission to record, whereupon TA terminated his link to the remote hearing.

Recording court proceedings

The Judge noted that the Court of Protection is not specifically included (see section 85D(2) Courts Act 2003) in the list of courts to which section 55 and schedule 25 of the Coronavirus Act 2020 (‘the 2020 Act’) applies. The 2020 Actintroduced new statutory provisions (sections 85A-85D) into the Courts Act 2003 which allows the court to direct a recording of the proceedings and creates a criminal offence for a person to make or attempt to make an unauthorised recording

However, the guidance ‘Remote Access to the Court of Protection’ issued in March 2020 advised that the terms of the statutory criminal prohibitions were to be included in every standard order thereafter, and had been included in all orders in these proceedings.

Section 9 of the Contempt of Court Act 1981 in addition makes it a contempt of court to record a hearing without the permission of the Judge. There is a discretion under the civil law to permit recording (Practice Direction (Tape Recorders) [1981] 1 WLR 1526) if the applicant had a ‘reasonable need’. The Judge found TA had no such need, having a very good, even ‘extraordinary’ grasp of the procedures, documents and issues engaged.

These proceedings were also subject to ‘Transparency Order’ which prohibits the reporting of any material which identifies, or is likely to identify, that GA is the subject of proceedings; any person as a member of the family of GA; that A Local Authority is a party; and where GA lives. The content of video-recordings which relates to these proceedings is controlled by s.12(1)(b) of the Administration of Justice Act 1960 and may not be published unless publication falls withinthe exceptions contained in Practice Direction 4A, paragraphs 33 to 37.

The court endorsed the definition of ‘publication’ set out by Munby J (as he then was) in re B [2004] EWCH 411 para 82(iii) as anything the law of defamation would treat as a publication, thus covering most forms of dissemination either oral or written.

Order restricting communication with the court office

TA had been engaged in litigation concerning GA for approximately two years and the nature of his correspondence to the local authority was ‘abusive and inflammatory’ to such an extent that the local authority deemed TA a ‘vexatious complainant’ in March 2019 in line with the Local Government & Social Care Ombudsman’s guidance on managing unreasonable complaint behaviour. The decision was reviewed but ultimately extended until 12 September 2021 as TA refused to accept limits to his behaviour.

By the latter part of 2020, TA’s behaviour had extended to the Court of Protection court office. The Operations Manager noted excessive email traffic generated by TA who copied in ‘100s’ of other recipients, along with excessive telephone calls with abusive comments, primarily directed at the judiciary. Further, TA made 39 COP9 applications over a 24 month period.

TA dismissed the evidence of the Operations Manager, describing the statement as a “badly drafted pathetic attempt at a fraudulent witness statement”. He did not deny the volume of his correspondence but sought to justify it on the basis that HMCTS staff were engaged in a deliberate attempt to pervert the course of justice, in collaboration with the judiciary.

The court found no justification for the volume and nature of the correspondence from TA. It was wholly disproportionate and no doubt a significant distraction for the court staff. The court cited the obiter remarks of King LJ in Agarwala v Agarwala [2016] EWCA Civ 1252 which considered general judicial case management powers to regulate communications with the court to avoid ‘a torrent of informal, unfocussed emails’. Support for this approach was further located in the Court of Appeal’s judgment in Attorney-General v Ebert [2002] 2 All ER 789 where Brooke LJ observed at para 35 that by exercise of the inherent jurisdiction, the court’s supervisory role extends to the regulation of the manner in which the court process may in general be exercised, including the power to restrain litigants from wasting the time of court staff and disturbing the orderly conduct of court processes in ‘completely obsessive pursuit of their own litigation’.

The court therefore proposed to make the ‘exceptional’ order of restraining TA from communicating with the court office by email and telephone. TA could continue to send letters if necessary, but he could not expect a response if his correspondence was abusive. While Brooke LJ contemplated the exercise of the inherent jurisdiction, the court proposed to rely on section 47(1) Mental Capacity Act 2005.

A penal notice was attached to the injunction.

Family Justice Board statement: Priorities for the family Justice System.

This was issued in December 2020. I will be interested to see how this pans out. There are rather too many vague statements of intent:

“to ensure the most vulnerable children and families are prioritised and the future system is designed around their needs”

“All reform in this area must continue to have the best interests of children and families at its heart, and lead to improved outcomes for children”

Which troubles me in light of the concerns I have raised over the focus of the MoJ Expert Panel – to identify and prioritise ‘victimhood’ at the start of the process, with little or no focus on the Article 6 rights to a fair hearing.

It’s all well and good to trumpet ‘best interests’ and ‘good outcomes’ – but who is deciding what each of these terms mean and what they look like? The family justice system exists first and foremost to apply the law. It cannot create law or finance policy decisions. Some of the most difficult care cases involve teenagers in acute mental distress. Access to help and support – even a safe place to stay – is very difficult and unlikely to improve in the near future. I am unsure what the family justice system can do to make that situation any better.

For ‘reforms’ to any legal system to have any benefit, they must be focused on both the limitiations and the demands of a legal system. There must be equality before the law, not assumptions at the outset re ‘victims’ or ‘perpetrators’. There must be recognition that so much of what needs to change to secure better outcomes for children, will rely on services external to the family court which require central government funding to survive.

Particularly with regard to care proceedings, rather than looking on how to make final hearings better, shouldn’t we be thinking more about how we avoid the court process? Why are applications in both private and public law proceedings so relentlessly on the rise? It certainly suggests a failure of any attempt to ‘problem solve’ or mediate. My best guess at why this is happening is because those agencies and services which might have been able to divert a family away from the court are no longer operating or have been greatly reduced. The court becomes the only option.

I know its easy to criticise and difficult to do better. I don’t wish to cast aspersions on the good intentions and hard work of those who have contributed towards this. I am glad to see efforts being put towards increasing the number of available judges. But there remain some pretty big elephants in the room who will, at some point, need feeding.

The family justice system exists to safeguard vulnerable children and adults, and to act in the best interests of the child at all times. Our success depends on effective, timely coordination across a wide range of agencies, an everyday challenge that has been greatly exacerbated by the Covid-19 pandemic.
Increasing numbers of children have experienced delay to the court proceedings in which major decisions will be made about their lives. We are acutely aware of the impact this has on their identity, mental health and wellbeing, on top of the range of additional challenges which led to their involvement in proceedings.
As a Board, we have agreed a programme of prioritised action that will tackle the immediate pressures and deliver the longer-term reforms that are needed to ensure the most vulnerable children and families are prioritised and the future system is designed around their needs and runs smoothly.
This note summarises the priorities that we have identified for attention and have tasked the Family Justice Reform Implementation Group to coordinate and oversee. Details of our specific priorities for public and private family law are outlined within specific reports issued alongside this statement.
Children within outstanding cases are experiencing greater delay as the family justice system has long been struggling with caseloads. The timeliness of care proceedings has deteriorated in recent years, and private law applications have grown by around a quarter since 2014. This has had a lasting impact on vulnerable children who are awaiting decisions that will define their future, and on the wellbeing of staff across the system.
System capacity has been further – and profoundly – challenged by the outbreak of Covid-19. The response within the system has been nothing short of extraordinary – from local authority social workers and Cafcass/Cafcass Cymru officers maintaining family contact through a blend of ‘in person’ and remote visits, to the national implementation of virtual court proceedings by HMCTS, legal professionals and the judiciary. These efforts, and the careful triaging of activity, ensured that work and support continued with the most vulnerable people.
We recognise and pay tribute to the dedication and tireless effort of professionals across the sector. We know that you are dealing with caseloads that are far higher than before, and that your work is made so much more challenging in the current context. We have already taken a number of steps to try to alleviate pressure within the system:
• Since the outbreak of the pandemic, a national cross-sector Covid-19 recovery group has met frequently to coordinate the system response; 2 • HMCTS has recruited approximately 900 additional support staff across all jurisdictions, with currently around 700 further appointments sought; • Approximately £3.5m additional funding has helped Cafcass increase staffing levels to respond to record levels of open cases; • A programme of recruitment to increase judicial capacity is ongoing.
Whilst additional resources are essential to stabilising the system, we know that further measures are needed urgently to address the immediate challenges posed by the pandemic and entrenched, longer term issues. The measures that we are focusing on as priorities to pursue are set out below.
Immediate recovery priorities. In private family law, we need to focus initially on delivering interim measures to increase the efficiency and flexibility with which applications are dealt and progressed. The first priority must be the pursuit of immediate changes to alleviate the backlog of cases growing in ways which ensure risk is identified and the most urgent cases seen first.
These changes include, for example, the courts adopting more collaborative case management planning during gatekeeping, or embedding the temporary flexibilities afforded by Practice Direction 36Q over the management of Child Arrangements applications. There has been significant innovation and learning from the ways in which local courts have responded and these are now being shared through regional networks so that the measures that are easiest to implement and have the greatest impact can be introduced everywhere, tailored to local circumstances.
In public family law cases, the Board recognises that the immediate focus must remain on ensuring that the children, young people and families who are most severely impacted by delay stemming from Covid-19, are prioritised. There is an immediate need to ensure cases with serious child safeguarding risks are taken to court and heard in a timely manner, and collective action is needed to progress permanence decisions and find ways to manage the most complex and contested hearings in a way that is just.
Longer term reform plans Private law – the Family Justice Reform Implementation Group will continue developing a programme of pilot projects to test a revised Child Arrangements Programme, to deliver an earlier gateway to court which offers families a more rounded assessment of the needs of children and their families, and an improved offer for non-adversarial problem solving. Those cases that proceed to court would be offered a differentiated approach to adjudication, dependant on need, with more effective case management and review, in line with the findings of the President’s Private Law Working Group and the Expert Panel on Harm in the Family Courts.
Work to design this reform programme is underway now, and further information will be cascaded in due course. A guiding objective of these longer-term reforms will be to ensure that the system continues to put children and families first.
Public law –the system needs to be ready to support all vulnerable children and adults who depend upon it, and the greatest need is to ensure that those who need support and safeguarding receive it at the right time. Where appropriate, pre-proceedings work and the extended family network should be used. The priority should be to renew existing good practice within the Public Law Outline and implement a system-wide leadership focus on practice improvement.
These recommendations re-state and re-emphasise the statutory and regulatory requirements and good practice. All reform in this area must continue to have the best interests of children and families at its heart, and lead to improved outcomes for children.
Coordinating delivery – a national, regional and local approach The task of addressing the profound challenges facing family justice needs to be a genuinely shared endeavour. The system is complex and multi-faceted, and no single organisation can deliver the changes that are needed in isolation. The Family Justice Reform Implementation Group – comprised of leaders from across the system – will be accountable to the Family Justice Board for overseeing delivery of our priorities.
Pressures and challenges prevalent in one part of the country will be different from those elsewhere – a prescriptive central plan will never recognise and accommodate this regional variation. In recognition of this, the Implementation Group is finalising the regional and local arrangements that it will adopt to ensure the activities of greatest potential impact in different parts of the country are pursued. Local Family Justice Boards are uniquely well positioned to ensure that priority actions respond to the most pressing local and regional challenges and will have an essential role to play.
We will share further information about the national, regional and local delivery arrangements in early January 2021. Issued with the endorsement of Family Justice Board members and observers

2020: The Year in Review

2020 has been a very strange year. I found myself both recorded by the police as a ‘hate incident’ and also rewarded as ‘Family Law Commentator of the Year’.

Annoyingly, I appear to have lost data from Google analytics for the time prior to August 2020 but from 4th August – 23rd December the CPR site had 148,689 users. Sadly, yet again the two most read posts dealt with domestic violence (26,804) and parents with mental health difficulties (22,733). The discussion about which sex abuses children most continued to be of great interest and was the fourth most read post (14,238) and attracted by far the most comments.

A lot of my focus this year has been on the increasing ferocity and general insanity of the ‘gender ideology’ debate and the impact on young children of treatment via puberty blockers and cross sex hormones. The December decision in Bell v Tavistock was of enormous significance; permission has now been sought to challenge it at the Court of Appeal and I can see I am going to need to keep updating my conference speech for the 8th Family Law and Children’s Rights Conference. Pandemic permitting, I will be speaking there in July 2021.

That focus inevitably meant I had less time to examine issues of particular relevance to the child protection system – but my concerns about the lack of open and honest debate relating to issues around the transition of children are directly relevant to the child protection system and safeguarding in general. The unifying thread for all of my work is the concern about the consequences of allowing single issue campaigners to be the ones to apparently decide the direction of law and policy.

Violence

One such concern was the approach of the Ministry of Justice to issues of violence in the family law system. The report Assessing Risk of Harm to Children and Parents in Private Law cases was published in June 2020 and in December 2020 I attended an on line discussion with some of its authors. I was not reassured. The focus appeared to be entirely on identifying women as victims at the outset; there was no discussion about the harm done by exaggerated or false allegations of abuse and how the court system was going to deal with any of this. There are serious implications for Article 6 rights in all of this.

We were told in December that it was accepted that lack of resources was a real problem – most notably for the implications this has on judicial continuity – but at the same time told to reflect on our practice and ‘improve’ our performance. I remain very uneasy at being told the courts operate a ‘pro contact’ culture. That isn’t my experience. That there is such an apparently huge disconnect between my experience and those of others, does require further thought.

https://twitter.com/SVPhillimore/status/1338534523622084613?s=20

A conjoined Court of Appeal case is due to be heard in January 2021, with a variety of interveners. This is apparently to examine appeals from decisions made in the magistrates court around issues of serious sexual violence in relationships between parents. Hopefully this will provide more clarity or at least be an honest airing of the issues.

Parental Alienation

This clarity is urgently needed because a further schism is opening up between those who recognise parental alienation as a serious problem, involving parents of either sex and those who claim it is rather a smokescreen put up by abusive fathers, to deny women the opportunity to protect themselves and their children. I found myself writing a lot about parental alienation this year. It must surely be possible for the Family Justice System to find better ways to more efficiently manage the tensions inherent in promoting contact but preventing children from harm.

PARENTAL ALIENATION – trends, strategy and pitfalls

Journalists and the ‘secret family courts’

Journalist Melanie Newman succeeded in getting permission to appeal against the decision to refuse to allow her access to case papers – the appeal should be heard in March. This is likely to be a significant decision relating to issues around the extent of disclosure of information in family cases to journalists. I used to be in favour of greater transparency but have revised my views in light of what appears to be the continuing failure of journalists to report with any degree of accuracy about the family justice system.

Through a Glass Darkly – Transparency in the Family Courts

Happy New Year?

So there is a lot happening. We have at least appeared to have grappled tolerably well with the challenges of remote hearings during the pandemic, and the work of the Nuffield Family Justice Observatory has been extremely helpful.

But not all of what has been happening is the product of a genuine desire to find the truth and solutions. Much of it, in my view, is the result of single issue campaigners who wish to bend the law to their own vested interests. The courts, at least so far, seem willing to resist.

But the saddest thing of all remains. The CPR site has been running since 2014. In all that time the two most read posts remain constant – concerns about violence in relationships and how parents with mental health difficulties navigate the court system. That suggests strongly to me that we have got no better at dealing with either. I hope by the end of 2021 both no longer dominate the Top Ten, but I am not optimistic.

At least I hope this time next year, to be no longer a police certified hate monger, but that will depend on how my own court action pans out.

A very Merry Christmas to all my readers. And, I hope – a Happy New Year.

Why are children being demonised by those who raised them?

This is a guest post by a 15 year old. It is sad to read because I suspect many would agree.

It takes a village to raise a child, yet the current generation seem to think the child will raise itself

Legally a person is an adult at 18. A fact defined by law. So why are the current expectations forcing teens as young as 13 to ‘be mature’ when they are legally a child? The current expectation on our shoulders is crushing, overwhelming and debilitating. We are both expected to grow up and take an onslaught of pressure from every angle while simultaneously enjoy an enriching childhood. This a task I believe the majority of adults could not complete, so it seems to be passed to the teens of today. With so many adults washing their hands of responsibility towards the care of children, we have a generation growing up with no childhood. When was our right to just be a child stripped from us? Every adult seems to have a negative thing to say about how teens act but they are the ones who have created a system where these ‘disruptive’ teens are stripped of their childhood innocence and are shoved into the deep end of maturity before anyone has taught them how to swim. Children are drowning. A statement that once would have sparked action but now is ignored.

Imagine a world where people would take responsibility for what they have created. Shame it is only a dream rather than reality. Teens are a product of this generation, anything this generation has to say about the actions of teens, surly speaks louder of them. The current parenting technique is coddle your child and squash any ideas of own independence, until the child makes a mistake then they are questioned on their lack of maturity. We don’t expect knowledge before its taught so why do we expect maturity when the opportunity to learn it is never given? When you have a child, you have made that decision to feed, house, care for and be part of raising the next generation. However current parents seem to be forgetting they signed on to that deal. They provide their child with necessities to life then abandon them when it comes to teaching them how to live a life. We are referred to as the snowflake generation and hated by our elders, but we are what they made us. Teens are just mirrors reflecting the mistakes of the current adult generation. Its time to point the finger of blame to the real culprits.

Teens of today are having their wings clipped during childhood and then are expected to fly when it comes to their 18th birthday. Adults enforce rules on every aspect of life before soon there is only one option for children. A path of rules, exams, and no individuality. With no time to be a child, no time to develop the mind, no time to learn the skills needed for what the rest of life has to offer. There is a generation of scared and underprepared teens and all the adults have to say in response is grow up. Its like a twisted maze where the only exit is locked, and we don’t have the key. Its very clear to me why there is exponential growth in mental health issues in our generation of teenagers. Its black and white, clear as day; yet adults will close their eyes to it and claim we are just delusional. That every issue we face, they too faced and overcame meaning we are just snowflakes who cannot handle it. But these adults did not have their childhood ripped from them. They had no fear that they wouldn’t fit on the one pathway to success our society has created. They didn’t have numbers on a page that defined their worth in this world. The world is changing, and adults need to stop dragging their feet and support teens of today to face the 21st century before we lose hope of a brighter future.

Role models, a universal way of showing those who are learning what the end goal is. A sports role model would inspire children and help grow the next generation of Olympic athletes. So, when our generation is looking for role models to show them how to be a good person, where do we look? With corrupt governments leading almost every major country, it’s not there. With the education system now based on exam results and Ofsted reports with overworked and underpaid teachers, it’s not there. With parents now so consumed with fighting for survival in an economy where only the top 10% survive, its not their either. Every option there is to consider have all been tainted by the current society’s obsession on money, there is no room for teens of today to simply learn how to be a good person. Climate change ignored. Racial inequality pushed aside. Gender bias dismissed. Our world is run by rich white men who will ignore or even aid in the failings of society to benefit their bank balance. When this is what the teenage generation have to follow no wonder we are considered ‘immature’ because the thought of growing up is met with the knowledge we will have to fight in a world where we won’t win.

Teens of today have been set up to fail not just be those who raised them. Forced through an outdated and overlooked system to only inherit a dying world. Before adults talk about the failings of teenagers the question needs to be asked, why are they failing? It takes a village to raise a child and it’s time for that village to step up.

8th Family Law & Children’s Rights Conference July 2021, Singapore

I have been invited to present a paper at this conference, postponed from July 2020 due to the pandemic. This was a timely postponement as it will enable me to incorporate and discuss what will be a seminal judgment in the Keira Bell case, due to be delivered on December 1st 2020.

The changing legal response to primary school children who are said to wish to transition from one sex to the other. Have legal responses been captured by considerations other than the rule of law and the welfare of children?

Historical context – the birth of the ‘trans child’

Only an understanding of how we got here will enable us to fully understand where we are now. By 2018 it had become firmly established as a UK ‘cultural norm’ that transgender identities were inherent and that any challenge to this was not acceptable, to the extent that those raising questions or unease about how this translated to choices made by even very young children were ‘transphobic’ and ‘hateful’.

This is a pretty dramatic shift from 20 years ago, when the issue of the ‘trans child’ simply was not on the radar of the family justice system. The concept has been successfully normalised in what seems a very short space of time, using both medical and legal routes.

From 1999 – 2019 I encountered not a single case involving a ‘transgender child’ but in 2020 I had two. How has recognition of issues of ‘gender identity’ shifted so dramatically over the past decade?. ‘Queer Theory’ has become more mainstream; this, in essence, re-frames innocence and vulnerability in children as ‘support systems of power’ that enforce heteronormatively and other harmful stereotypes.

As long ago as 1979 the ‘Harry Benjamin International Gender Dysphoria Association’ was established, now known as the World Professional Association for Transgender Health (WPATH). This organisation advocates for ‘trans affirmative’ clinical guidance and training course for health professionals working with transgender people.

By the 1990s in the UK, parents of ‘gender dysphoric’ children began to request hormone suppression at the first signs of puberty. Such ‘puberty blockers ‘ administered at a young age, followed by cross sex hormones, would enable a child to ‘pass’ more effectively as the opposite sex when an adult. By 2009 the Endocrine Society had new clinical practice guidelines for treatment of transgender children which lowered the age for administration of hormones from 16 years to the first onset of puberty. However, the long term consequences of such treatments are not known – and it was not until 2020 that the NHS revised its on line guidance to make that clear.

In the USA in 1995 an International Bill of Gender Rights (IBGR) emerged, setting a legal stage for the development of ‘the transgender child’ including claimed rights for transgender peope to define their own gender identity and to alter their bodies, surgically or medically as they saw fit, coupled with a right not to be subject to ‘involuntary psychiatric diagnosis or treatment’.

In 1997 the European Court stated in X, Y and Z v the UK (1997) 24 EHRR 143 that transexuality “raises complex scientific, legal, moral and social issues, in respect of which there is no generally shared approach among the Contracting States”. But over the years that followed, the complexity of those issues were re-considered in the light of growing demands for the recognition of the rights of trans people.

In 2007 the ‘Yogyakarta Principles’ were drafted by a group of academics and transactivists.. Gender identity was defined as:

… each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms.

The Yogyakarta Principles have no legal force, they are not incorporated into any UN convention or declaration but over time they have been regularly cited and relied upon. They were redrafted in 2017 to propose ‘no eligibility criteria, such as … minimum or maximum age … shall be a prerequisite to change one’s name, legal sex or gender’

In 2007 in the UK, the Department of Health declared that being trans is ‘not a mental illness’ and by 2012 the British Psychological Society produced guidelines to affirm all sexualities and genders, pointing out their profession’s long and inglorious history of pathologizing individuals who went against traditional norms of sexual expression.

In 2008, Department of Health guidelines advised ‘sex assigned at birth’ and the child’s ‘inner sense of knowing’ their true gender, may not align, and ‘gender variance’ in children can emerge at a very young aged, identified in the ways children behave in their dress or play. Parents were urged to address their child’s gender variance as soon as possible in order to secure their future as a happy adult.

Around this time, referrals to the Gender Identity Development Service (GIDS) at the Tavistock and Portman NHS Foundation Trust showed a staggering increase; from just 97 in 2009/10 to 2,016 in 2016/17.

From 2014/15 to 2015/16,referrals increased by over 100% and from 2015/16 to 2016/17 they increased by 41%. Ages at referral seen by the service ranged from a very few at 3 to 17 years old [www.ncbi.nlm.nih.gov] The majority of the children were registerd female at birth.

What had apparently been born out of a desire to confront and tear down harmful stereotypes around regressive gender stereotyping, had instead become affirmation of the same, to the extent that if a boy wished to play with ‘girl’s toys’ or wear ‘girl’s clothes’ he could not actually be a boy but was instead a girl born ‘in the wrong body’.

Since 2015, after the fight for gay marriage was won in the UK, the lobby group Stonewall added a ‘T’ to the LGB, a move that saw its funding increase from £4.33m in 2013, to £7.24m in 2017. The charity Mermaids, saw a similar surge in its funding.

The Human Rights Council established the office of the Independent Expert on Sexual Orientation and Gender Identity (SOGI) in June 2016 and the European Court of Human Rights (EHRC) recognized homophobic and transphobic hate crimes in 2018.

Also in 2018 the Royal College of Psychiatrists (RCPsych) in the UK endorsed the propostion that sex is assigned and gender identity inherent, supported removal of transgender status as a psychological disorder and objected to any kind of ‘conversion therapy’ to make people ‘cis gender’ (i.e. one whose ‘gender identity’ is congruent with their birth sex).

Alongside these declared positions by medical bodies and campaigning groups, frequent reference was made to the dangers of denying children access to treatment to address their gender variance. It has frequently been asserted that as many as 40% of transgender adults have attempted suicide; for example see “Pubertal Suppression for Transgender Youth and Risk of Suicidal Ideation,” (Turban JL, et al. Pediatrics. Jan. 23, 2020” .

However, the UK organisation Transgender Trend unpicked some of the research that supports this figure and concluded it was unreliable.

One study was conducted by questionnaire using a non-probability sampling method. This means that the questionnaire was promoted within the LGBT community and people chose whether or not to fill it in. In total 2078 questionnaires were analysed, however only 120 of these were transgender people, and only 27 of these were under the age of 26 years old. It is only the results from the 27 young trans people that was reported in relation to suicide. Of these 27 young trans people 13 of them reported having attempted suicide at some point in the past. This is where the 48% of all trans youth attempt suicide stat comes from.

Gillick competence

The bulk of reported legal cases around transgender issues reflect the choices made by adults. But when considering a child who declares themselves to be ‘trans’, we must examine more carefully the reality of their informed consent to medical treatment which could leave them infertile or with reduced sexual functioning as adults. There is no ‘test’ for ‘gender variance’ – doctors are expected to prescribe treatment on a self reported diagnosis.

“Gillick competence” refers to the recognition that the capacity of a child to make serious decisions about his or her life will increase as does the age and understanding of that child. It derives from the decision of the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 where a mother attempted to argue that children under 16 should not be provided any treatment or advice around sexual issues. The court disagreed and said that younger children could access such services, as long as they were able to understand the implications – i.e. were they ‘Gillick competent’?

Although a ‘child’ is defined as a person between the ages of 0-18, Gillick competence is only relevant to children under 16. Once children reach 16, in England and Wales they are held by various statutes as able to make their own decisions across a range of issues.

These are set out in the judgment of Lady Hale at para 26 of D (A Child) (Rev2) [2019] UKSC 42 (26 September 2019). For example Section 8(1) of the Family Law Reform Act 1969 provides that the consent of a child of 16 to any surgical, medical or dental treatment “shall be as effective as it would be if he were of full age.”

The Austrialian case of Imogen (No. 6) [2020] Fam CA 761; (10 September 2020) has some useful discussion about the continuing role of the court, even with a Gillick competent children (Imogen being over 16 at the time of the proceedings). The court identified the two stages of treatment for gender dysphoria as ‘stage 1’, being ‘puberty suppression’ via gonadotrophin releasing hormone analogues (GnRHa) in order to halt progression of physical changes such as breast growth or voice deepening. Stage 2 is ‘gender affirming hormone treatment’.

The court makes a distinction between therapeutic and non-therapeutic treatment, stating that both Stage 1 and Stage 2 were deemed ‘therapeutic’. Non therapeutic treatments were held to involve invasive, irreversible and major surgery, where there was a significant risk of making the wrong decision and where the consequences of that decision are particularly grave. Given that so little is known about the long term impact of puberty blockers and cross sex hormones for children, I suggest there is a question mark about the categorisation of both stages as ‘therapeutic’.

But the distinction is important when considering the limits of the court’s paternalistic powers to rule against the wishes of a Gillick competent child. It is of course possible, but very unusual. For example, In X and Others v The Sydney Children’s Hospital Network [2013] NSWCA 320; (2013) 85 NSWLR 294, the court did not allow a competent 17 year old Jehovah Witness to refuse blood products which were potentially lifesaving. However, this was the only case identified where a court has overruled the views of a Gillick competent child to impose treatment. Other cases involving anorexia nervosa and treatment for drug rehabilitation involved children who were not Gillick competent (Director General, Department of Community Services v Y [1999] NSWSC 644; Director General, Department of Community Services v Thomas [2009] NSWSC 217; (2009) 41 Fam LR 220). There was no recorded case where a court had refused a Gillick competent child the opportunity to consent to therapeutic treatment.

Much then seems to turn on how the adults assess the nature of the intervention to which a child seeks to consent. There has been considerable disquiet in England about the apparent ‘affirmation path’ upon which children are placed – in that treatment is not merely seen as ‘therepeutic’ but the only identified option, as opposed to therapeutic intervention.

Marcus Evans, now a psychoanalyst in private practice, formerly served as Consultant Psychotherapist and Associate Clinical Director of Adult and Adolescent Service at the Tavistock and Portman NHS Trust. In 2020 he wrote about why he resigned.

https://quillette.com/2020/01/17/why-i-resigned-from-tavistock-trans-identified-children-need-therapy-not-just-affirmation-and-drugs/

Those who advocate an unquestioning “affirmation”-based approach to trans-identified children often will claim that any delay or hesitation in assisting a child’s desired gender transition may cause irreparable psychological harm, and possibly even lead to suicide. They also typically will cite research purporting to prove that a child who transitions can expect higher levels of psychological health and life satisfaction. None of these claims align substantially with any robust data or studies in this area. Nor do they align with the cases I have encountered over decades as a psychotherapist.

As Heather Brunskell Evans points out, the child’s ‘gender identity distress’ is occurring within this cultural context and the ‘fantasy’ that it is possible to become the opposite sex. This prevents proper or even any discussion of the reality and limitations of surgical and medical interventions – for example, surgery on the female body to simulate a penis cannot create a fully functioning organ. There must be real and serious doubts about whether a child or adolescent can grasp the importance of information about medical or surgical intervention and fully understand the implications. Therefore significant doubts exist about the reality of their consent.

There were futher worrying signs that the intent announced in the Yogyakarta Principles’ – to remove any minimum age based reqirements around gender issues – were being encouraged further into the cultural context. For example, in 2019 the legal adviser to the Mermaids charity, attempted to erase entirely any distinction between very young children and those with ‘Gillick competence’ by commenting

….someone’s gender identity, at any age, must be respected. A child identifying as trans, whether it has been submitted this is as a result of harm or not, is identifying as trans and that must be respected throughout proceedings…More often than not, if a child says they are trans, they will be trans.

Two High Court cases. Re J and Re TP

So it is interesting to see how all of this has impacted on the approach of the courts in England and Wales, when considering the welfare of very young children who were declared by the adults around them to be ‘transgender’.

Both cases examined the issue of preschool children transitioning to the opposite sex. That is probably the only factor each case has in common but I think the different approach in each to the very young ‘trans child’ is an indication of the speed with which attitudes have apparently shifted – from not simply recognising the existence of young children who may have gender dysphoria and offering appropriate support, but to embracing the affirmation principle itself.

J (A Minor), Re [2016] EWHC 2430 (Fam) (21 October 2016) involved a mother who asserted that when her son was 4 years old he wanted to become a girl. She asserted that he ‘disdained his penis’ and was being subjected to bullying at school etc. She could not provide any proof of this and the school denied it was happening. She was supported throughout by the charity Mermaids who played a significant role in the development of a ‘prevailing orthodoxy’ that J wished to be a girl. That view was found by the court to have no bearing in reality and was a product of both ‘naivety and professional arrogance’

Mr Justice Hayden was highly critical of the local authority for getting swept up in this ‘prevailing and false orthodoxy’, commenting at paragraph 20 of the July judgment:

This local authority has consistently failed to take appropriate intervention where there were strong grounds for believing that a child was at risk of serious emotional harm. I propose to invite the Director of Children’s Services to undertake a thorough review of the social work response to this case. Professional deficiencies to this extent cannot go unchecked, if confidence in this Local Authority’s safeguarding structures is to be maintained.

So in 2016 it was clear to see that the court was doing its job to protect children; undertaking a clear and objective appraisal of the available evidence and making a decision in the face of angry opposition from Mermaids – who declared at the time that this decision would be appealed. It was not.

However, the approach of the court seems to have shifted quite dramatically only 3 years later in the case of Lancashire County Council v TP & Ors (Permission to Withdraw Care Proceedings) [2019] EWFC 30. This involved foster carers who had two unrelated children in their care who decided they wanted to transition – the youngest aged 4 years old. The local authority were applying to withdraw care proceedings, so it was a very different situation from re J. But even so, it’s interesting to see how the Judge framed this issue of transitioning pre schoolers:

Notwithstanding even the Guardian’s caution in respect of the openness of [the foster carers] to the possibility of an alteration in the children’s attitude to their gender identity I conclude that Dr Pasterski’s evidence demonstrates that it is obvious that neither of these grounds would meet threshold. Taken together with the panoramic evidence of the child focused approach of [the foster carers] it is overwhelmingly obvious that neither H nor R have suffered or are at risk of suffering significant emotional harm arising from their complete social transition into females occurring at a very young age. The evidence demonstrates to the contrary, this was likely to minimise any harm or risk of harm. The evidence does not support the contention that it was actively encouraged rather than appropriately supported.

This poses two immediate questions: how is it ‘overwhelmingly obvious’ that a 4 year old will experience no harm from a decision to transition from male to female at such a young age (and against the wishes of the school). It seems to be an inescapable fact that the evidence base to support any expert opinion that full social transition for a pre-school child is a ‘positive’ thing, simply cannot exist. 20 years ago, so far as I have been able to discern, this phenomenon was unknown. There is apparently no cohort of children who have been tracked from toddlerdom to adulthood to see if full social transition at a young age was something that helped or hindered their emotional, physical and sexual development. If I am wrong and that evidence does in fact exist, it did not appear to be before the court in either of the two cases I discuss here.

The second question is why the court did not give more critical appraisal to the highly unusual fact that here were two unrelated children in the same family, both apparently expressing a wish to change sex at a very young age. To what extent can the court be confident that this was a genuine expression of their wishes and feelings, rather than a product of environmental and social pressure from the adult care givers? There is considerable and I think reasonable fear expressed by gay people that some parents would rather have a trans child than a gay child as this is more ‘socially acceptable’.

I think there is a real problem here. No one is suggesting – yet – that 4 year olds should face surgery or medical intervention. But how confident are we that a child set on a path aged 4 is going to find it easy to leave that path when older? The ultimate destination is presumably some form of significant medical or surgical intervention and life long consequences. It is troubling to note that we appear to know more about the impact of puberty blockers on sheep than we do on children. I note the comments from the Science Symposium on 18-19 October 2018 at The Tavistock and Portman NHS Foundation Trust:

KIERA BELL CASE TO DISCUSS WHEN JUDGMENT IS OUT

Tide is turning ?

Shortly before the case was heard in court on 7^th and 8^th October, the NHS announced a review on 22^ndSeptember, lead by Dr Hilary Cass OBE, former President of the Royal College of Paediatrics and Child Health, into gender identity services for children and young people. The review will be wide-ranging in scope looking into several aspects of gender identity services, with a focus on how care can be improved for children and young people including key aspects of care such as how and when they are referred to specialist services, and clinical decisions around how doctors and healthcare professionals support and care for patients with gender dysphoria. It will also set out workforce recommendations for specialist healthcare professionals and examine the recent rise in the number of children seeking treatment. Recommendations for children and young people’s gender identity services will be made in 2021.

How does the court decide to have a ‘fact finding’ hearing?

A ‘fact finding hearing’ does what it says on the tin. It’s the way in which the civil courts attempt to find out what happened when people disagree about the facts. Or, to be more accurate, it ‘finds’ facts on the balance of probabilities, which is the civil standard of proof. So if the Judge reads the court papers and hears people give evidence and be questioned, then thinks that something is 51% more likely to have happened than not, you will get your finding.

There is a curious narrative in the family justice system that this system establishes the ‘truth’ and that children are entitled to it. I agree that children have a right to know what happened to them – who hurt them and why – but I have often argued that we need more realism about the nature and limitations of the fact finding process.

In 2016 I said for a post for The Transparency Project

I can find only one mention in the judgment – at para 22 – to the fact that ‘the Truth’ will be determined in any rehearing on the balance of probabilities. The usual civil standard. Meaning more than 51% likely. I apologise if I have missed any further reference to this low civil standard – but certainly by para 27 it has vanished in the mist and what we have now is:

“the re-hearing must proceed so that the truth, whatever it turns out to be, can be ascertained, finally and definitively, in the light of all the evidence now available.”

I am very troubled by this. My concerns about the weight the ‘balance of probabilities’ is often asked to bear was explored in the discussions had by The Transparency Project, regarding the Ellie Butler case. I pointed out that to attempt to ‘exonerate’ someone on such a low standard of proof was unwise. I appreciate that findings must be made and must be considered definitive. But to go further and chase such findings as ‘exoneration’ and ‘the TRUTH’ is asking far, far too much of the balance of probabilities.

The Judgment and some of the arguments have a curious, naive air. That this rehearing will find The Truth, which will be crucial to X as he or she grows. X NEEDS an ‘accurate narrative’ of how his or her adoption came about. Seriously? How many of us have an ‘accurate narrative’ of our formative years. How many different choices, chances, perspectives, denials, hopes, dreams, fantasies and delusions have gone into making us who we are? Who is naive or arrogant enough to think they know The Truth?

I therefore do not accept that a fact finding hearing is a way to unmask the ultimate ‘truth’. However, I accept there must be some way of dealing with disputed allegations and identifying the agreed facts which will inform any decision made about the child’s welfare. Regardless of any unease about the process, you will arrive at something which from then on the court (and everyone else you have dealings with) must accept as objectively true. If you don’t prove your allegations, they are treated as never having happened.

So what happens if people are arguing about the need for a finding of fact? This can be a really serious and important issue in cases involving allegations such as violence or sexual abuse. The police may have decided to take no further action, if they and the CPS think it unlikely to get a conviction in a criminal court – which operates to a much higher standard of proof.

But the adult who is accused wants to be part of the chid’s life. How should the family court approach these cases?

The Family Procedure Rules 2010.

We start here. The ‘over-riding objective’ of the Family Procedure Rules is to deal with cases justly.

Dealing with a case justly includes, so far as is practicable –

(a) ensuring that it is dealt with expeditiously and fairly;

(b) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;

(d) saving expense; and

(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.

Rule 1.4(a)(c)(i) provides that, in furthering the overriding objective by actively managing cases, the court should decide promptly which issues need full investigation and which do not.

Rule 4.1(2)(l) permits the court, in the exercise of its general powers of management, to exclude an issue from consideration.

Case law

It is ultimately a matter for the court’s discretion as to whether a finding of fact is needed. The court decides what facts are necessary to be found and the court may disagree with any party’s perception. You can appeal against such a case management decision but the time limits are shot and strict.

The authorities mirror the overriding objective and the relevant considerations can be summaries as:

The interests of the child (which are relevant but not paramount)
The time that the investigation will take
The likely cost to public funds
The evidential result
The necessity or otherwise of the investigation
The relevance of the potential result of the investigation to the future care plans for the child
The impact of any fact finding process upon the other parties
The prospects of a fair trial on the issue
The justice of the case.

McDonald J at said at 242 in Re P (Sexual Abuse – Finding of Fact Hearing) [2019] EWFC 27

The fact that the complainant children have made allegations of sexual abuse does not create a rebuttable presumption that the allegations are likely to be true. An allegation is only an allegation, and the burden remains on the local authority to prove that the allegations made by the children are established to the requisite standard of proof

Other relevant cases are:

Re G (A Minor) (Care Proceedings) [1994] 2 FLR 69

Stockport Metropolitan BC v D [1995] 1 FLR 873

Re B (Agreed Findings of Fact) [1998] 2 FLR 968

Re M (Threshold Criteria: Parental Concessions) [1999] 2 FLR 728

Re D (A Child) (9 August 2000)

Lincolnshire County Council v CB & Ors [2021] EWHC 2813 (Fam) (21 October 2021) – short examination of the relevant law and principles; decided that a 20 day finding of fact was not necessary.

In a case involving allegations of sexual abuse, the court will look carefully at the credibility and reliability of the allegations and in particular if there has been compliance with best practice over interviewing children. There is a good examination of this in Re P above, which notes that allegations of child sex abuse create’ particularly acute forensic difficulties’ for the family courts.

Interventions by well meaning adults can often corrupt a child’s evidence beyond rescue and it is very important to adhere to the good practice around ‘Achieving Best Evidence’. Many children are susceptible and wish to please adults – they may end up saying what the adult wants to hear.

It is essential that clear and contemporaneous records are kept of what a child says, but a child should not be subject to repetitive questioning.

Getting it wrong in a case of child sex abuse has really serious consequences as Re P noted:

The consequences of the court reaching the wrong conclusion in respect of an allegation of child sexual abuse include a child being returned to a position of danger or, conversely, a child being deprived of a family that is, in fact, perfectly safe. In the circumstances, when determining whether sexual abuse has taken place and, if so, who is responsible for perpetrating that abuse, it is vital that the court remain acutely conscious of the forensic difficulties outlined above. As Holman J observed in Leeds City Council v YX & ZX (Assessment of Sexual Abuse) 2008 EWHC 802 (Fam) the task of the court in cases of this nature is not so much akin to putting together a single jigsaw puzzle in which all the pieces are present, but rather:

“If the jigsaw metaphor is helpful at all, then, in my view, it is important to think of a pile of jigsaw pieces in which pieces from more than one jigsaw have been muddled up. There may be pieces which, on examination, do not fit the jigsaw under construction at all, but which require to be discarded or placed on one side.”

Knowles J considered the relevant legal factors to decide whether to discontinue with a fact- finding hearing in Re X (Care Proceedings: Jurisdiction and Fact Finding) (Rev 1) [2020] EWHC 2742 (Fam) – see Para 79- 82

He cited with approval Re C (Family Proceedings: Case Management) [2012] EWCA Civ 1489, where Munby LJ (as he then was) distinguished family proceedings from civil proceeding in this way (paras [14] –[15]):

“[14] … But these are not ordinary civil proceedings, there they are family proceedings, where it is fundamental that the judge has an essentially inquisitorial role, his duty being to further the welfare of the children which is, by statute, his paramount consideration. It has long been recognised – and authority need not be quoted for this proposition – that for this reason a judge exercising the family jurisdiction has a much broader discretion than he would in the civil jurisdiction to determine the way in which an application of the kind being made by the father should be pursued. In an appropriate case he can summarily dismiss the application as being, if not groundless, lacking enough merit to justify pursuing the matter. He may determine that the matter is one to be dealt with on the basis of written evidence and oral submissions without the need for oral evidence. He may, as His Honour Judge Cliffe did in the present case, decide to hear the evidence of the applicant and then take stock of where the matter stands at the end of the evidence.

[15] The judge in such a situation always be concerned to ask himself: is there some solid reason in the interests of the children why I should embark upon, or, having embarked upon, why I should continue exploring the matters which one or other of the parents seeks to raise. If there is or may be solid advantage to the children in doing so, then the enquiry will proceed, albeit it may be on the basis of submissions rather than oral evidence. But if the judge is satisfied that no advantage to the children is going to be obtained by continuing the investigation further, then it is perfectly within his case management powers and the proper exercises of his discretion so to decide and to determine that the proceedings should go no further.“

Conclusions

As with so much in family law, you need to deal with the case before you. Previous authorities can guide you and provide a useful checklist of what you need to be thinking about, but they cannot make the decision for you. Different people may reasonably hold different views about the importance or need for a finding of fact and it is up to the Judge to decide. The courts are motivated to avoid separate findings of fact as they cause delay and may prefer to deal with findings of fact and welfare issues at one composite final hearing, even if this does mean preparing the case on an ‘either/or’ basis.

Clearly, the more serious the allegations, the more recently they happened and the greater the kind of involvement in the child’s life the accused adult wants to have, the greater the need for a finding of fact.

And never forget, once those findings are made, you are stuck with them, unless you can successfully appeal or persuade the court to grant a re-hearing.

PARENTAL ALIENATION – trends, strategy and pitfalls

This is the text of a talk given to Bath Resolution on November 3rd 2020.

It is time to take stock about where we are now with ‘parental alienation’. Sadly, in so many areas of life and law, our ‘public debate’ appears to descend into pushing and shoving between two distinctly opposed groups. I have no doubt this is happening now in the context of parental alienation and – as ever – the people this will hurt most are the children involved.

I could talk for hours about the development of ‘parental alienation’ as a concept. It has generated a huge amount of ‘research’ and discussion. I do not want to get bogged down in arguing about labels – what matters here is the behaviour of some parents, its impact on the children and what we can do to get these very serious cases dealt with as quickly and fairly as possible. Time really is of the essence in such a situation; the more time that passes, the less likely you are to restore any relationship between child and alienated parent.

What follows does no more than scratch the surface but hopefully gives you some suggestions for further reading and research of your own.

I will look at three headings:

The identification of Parental Alienation

The likely response of the courts

Pitfalls to avoid.

The identification of parental alienation

There is currently a battle raging between two camps; those who state that ‘parental alienation’ is no more than another tool of an abusive parent (the father) who makes such allegation to cover up his own violence, and those who assert it is a prevalent and highly damaging form of emotional abuse.

For example in 2020 Good Egg Safety CIC produced a report about parental alienation and its impact, concluding that parental alienation was:

A devastating form of ‘family violence’ with psychological abuse and coercive control at its heart

However, the alternative view of parental alienation as a ‘grand charade’ was set out by Rachel Watson in July 2020:

A pattern emerged in the family courts (England & Wales) of parental alienation (PA) raised as a response to domestic abuse claims, as proved in Dr Adrienne Barnett’s research published in January 2020. It resulted in devastating outcomes for mothers and children. The need for a child to maintain contact became a priority as we were subtly influenced to believe in a new stereotype; a hostile, vindictive mother; a woman scorned, one who used her child as a pawn. Domestic abuse was reframed by controlling, abusive fathers who denied their behaviour, lied about it and projected it onto bewildered, abused mothers. Fathers’ rights groups powerfully marketed the new stereotype. They cried from the rooftops;

“Mothers lie about abuse and cut off contact from deserving fathers; we are the true victims; there is a bias against us!”

Judges routinely minimised domestic abuse in the courtroom; mothers were disbelieved, dismissed and punished through the contact arrangements. Welfare reports were often carried out by unsuitable and underqualified assessors.

This kind of assertion cannot be dismissed simply because the language used is overblown and the evidence in support is questionable – these issues have captured the attention of law and policy makers.

The recent report from the Ministry of Justice in June 2020 purports to assess risk of harm to parents and children in private law cases. Concerningly, it talks of a ‘pro contact culture’ where “the courts placed undue priority on ensuring contact with the non-resident parent, which resulted in systemic minimisation of allegations of domestic abuse.”

I have been critical of this report, not least because it makes no sense to recast the domestic and international obligations on the courts to protect the child’s Article 8 rights to a relationship with both parents as a ‘culture’. Further there is heavy reliance on uncorroborated anecdotal accounts to support the Watson/Barnett view.

However, I have to concede that if over a thousand people take the trouble to write in with serious complaints, we can’t ignore that many are very unhappy about the way the family justice system operates and we should be curious about the reasons why.

But I do not think the root of the problems here are with a ‘pro contact’ culture and use of this phase does, in my view, (either consciously or not), minimise the harm that parental alienation does.

If you wish to read further, my comments and a link to the report are here

Assessing Risk of Harm to Children and Parents in Private Law cases.

Case law

Some more recent authorities are;

T (Parental Alienation), Re [2019] EWHC 3854 (Fam) (18 December 2019)- interesting case where the mother agreed to a transfer of residence
Transfer of residence of child from mother to father – RH (Parental Alienation) [2019] EWHC 2723 (Fam) (03 October 2019)
Re S (Parental Alienation: Cult) [2020] EWCA Civ 568 – child ordered to live with father if mother continued to refused to give up her adherence to a ‘harmful and sinister’ cult.

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

The likely response of the Courts

So you think you have a case of parental alienation on your hands? Now what?

We must be aware of the elements which are nothing to do with the legal or factual aspects of the case before us, but which all operate to frustrate an efficient or timely resolution. All my cases involving parental alienation have lasted years. The vast majority ended only when the child aged out of the system or the other parent gave up. However, there does seem to be a greater willingness from the courts to transfer residence now, than I saw 10 years ago – I would be interested to know if anyone else shares this view.

The courts are overwhelmed.

The key point is that the courts are overwhelmed and never more so than now. The removal of legal aid for private law applications caused not a rush to mediation as was hoped but instead to a significant increase in litigants in person with consequent obvious additional burdens for Judges.

But it’s always good to remember that the courts are pre-disposed to want you to go away. There may be initial resistance to identifying a case as a serious example of risked emotional harm. You must hit the ground running with a clear case, effectively presented.

Maintain your objectivity

Push for finding of fact as soon as possible and consider LA involvement

Other ‘structural’ problems

You must be aware of the other structural elements that operate against effective resolution. It is clear that an adversarial court environment is not a good place for angry or frightened people to be. Even the physical environment of many courts operates to reduce the chances of effective negotiation and compromise, with no where private to sit and talk.

Of course, remote hearings don’t make any of that any easier. But on a positive note the findings of the Nuffield Observatory indicate that the perception at least of such hearings is that they are fair most or all of the time.

https://www.nuffieldfjo.org.uk/resource/remote-hearings-september-2020

Lucy Reed wrote recently about the structural problems that make the system ineffective – even positively harmful.

The Structural Problems in Private Law

She notes the increasing burden on any lawyer representing the child, who may be the only lawyer in court, particularly if they are asked to take on cross examination of both parents!:

It is a tricky, uncomfortable and exhausting task. Particularly where, as I recently was, counsel for the child is tasked with asking questions sequentially on behalf of both parties of the other, as well as (eventually) her own. The burden on an advocate of asking questions from three metaphorical vantage points in turn is significant.

Common pitfalls if the court decides to transfer residence

What’s the exit plan?

So you have navigated the fact finding process and a court has determined that the child’s residence needs to change. Depending on the length of time a child has been alienated and the degree of opposition expressed, you may need expert help on the ground. This will require careful thought as there are sadly many examples of when attempts to change residence went wrong – one local example is Re A (Children) (Parental alienation)[2019] EWFC

In October 2019 I wrote an open letter to the President which was signed by lawyers, parents and experts.

A letter to the President of the Family Division: No unregulated expert shall be allowed to report in a family case

We are writing to request an amendment to Practice Direction 25 B so that no person may be permitted to submit an expert report involving the assessment of any child unless that person meets minimum standards of professional practice, which we assert are as follow. The expert must:

submit to an external regulatory or supervisory body which requires adherence to a Code of Conduct
meet professional obligations as data controllers
provide clear and accessible formal complaints procedure

We are troubled by the number of experts involved in family proceedings who do not appear to meet some or all of these basic requirements.

I received a reply that this was being considered but COVID and the President’s ill health intervened and I haven’t heard back – this reminds me to chase.

But while waiting to see if the rules are amended I strongly urge you to bear this in mind when deciding who to instruct. I advise avoiding any organisation or individual who cannot meet such basic requirements of good practice.

Costs

Basic principles.

Costs orders in children’s cases are exceptional but possible.

The Judge retains a general discretion to make a costs order in family proceedings– as set out in primary legislation (see s51(1) SCA 1981) and repeated at r28.1 FPR.

The conduct of the parties is a relevant factor at CPR r44.2(4)(a), which is not disapplied by FPR r 28.3. ‘Conduct’ is further defined at CPR r44.2(5):

conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction – Pre-Action Conduct or any relevant pre-action protocol;
whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
the manner in which a party has pursued or defended its case or a particular allegation or issue;
whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim.

See principles derived from Re R(A minor) [1996] EWCA Civ 1120 and In the matter of S (A Child) [2015] UKSC 20 :

The child’s welfare is paramount, the court adopts a quasi-inquisitorial approach and there are many possible outcomes;
The court generally needs to hear from both parents: ‘no one should be deterred by risk of having to pay other sides costs from playing their part in helping the court achieve the right solution’;
The court can assume that the parties are not generally motivated by malice;
The parties need to work together and one should not be stigmatised as ‘the loser’;
Costs orders can reduce funds available to the family.

How does the court identify ‘unreasonable conduct’ which would make it appropriate to order costs?

The Court of Appeal in R (a Minor) considered it in this way:

The decision in Re R has been followed and endorsed in a number of cases; for example, see Re F (Family Proceedings: Costs) [2008] EWCA Civ 938 and G (Children) [2013] EWCA Civ 1017.

The court does not need to make a finding that the party acted maliciously or in deliberate bad faith; a party may genuinely believe their actions are reasonable but in reality they are not.

Giving up a baby for adoption – what if the dad doesn’t know?

The vast majority of adoptions in England and Wales are ‘non-consensual’ or ‘forced’ i.e. the parents did not agree this was the right thing for their child. Adoption is famously the last resort – ‘when nothing else will do’ and parents are given every opportunity to argue for some other outcome.

There remain however cases where mothers want to give up their babies at birth – a case of ‘relinquishment’. What happens when the mother has not told the baby’s father, and does not wish to? There can be a variety of reasons for this decision and the court will have to think carefully about what to do. It’s often likely that family secrets cannot be kept over time

Adoption is really important and significant for the child and for other family members. Therefore a mother cannot by herself take a unilateral decision to keep the adoption a secret – the court must ask what the child would think later in life if he or she found out the other relatives weren’t told.

The LA should make an application as soon as possible under Part 19 of the Family Procedure Rules for the court to determine if attempts should be made to identify the father or other family members and assess them as prospective carers.

The recent case of A, B And C (Adoption: Notification of Fathers And Relatives) [2020] EWCA Civ 41 (29 January 2020) examined the relevant principles. The Court of Appeal heard appeals from three separate cases, commenting:

For social workers and courts these are not easy decisions. They have to be made without delay, on incomplete information, and in the knowledge of the profound consequences for everyone concerned. The law aims to distinguish those cases where a ‘fast-track’ adoption without notification of relatives is lawful from the majority of cases where the profound significance of the decision for the child demands that any realistic alternatives to adoption are given proper consideration. But in the end each case is unique and the outcome must depend on the facts.

The court must first establish the facts as clearly as possible, which is not always easy when the available information inevitably going to be one sided. Once the facts have been investigated the court has to strike a balance between the various issues. The child’s welfare is important but NOT paramount, as is the case in other decisions about the child’s upbringing.

Para 87 of the judgment sets out agreed ‘best practice’ guidance about the extent and nature of the inquiries the LA should make when a parent wishes to relinquish a baby for adoption.

It isn’t possible to devise a ‘test’ to decide who gets notified but the relevant case law shows that the following factors are likely to be relevant. This list is of course, not exhaustive – every case is different.

If the father has parental responsibility for the child, he is automatically a party to the proceedings and very compelling reasons are needed to say that he can’t be told about the plans for adoption
If the father or other relatives have an established family life with the mother or child then their Article 8 rights are engaged, and again very good reasons will be needed not to tell them.
The court must look at the substance of the relationship between the parents and the significance of the relatives. For example – were the parents in a long relationship? Or more fleeting? Was the child conceived in circumstances where the mother did not give consent?
Is a family placement a realistic alternative to adoption? If a family placement isn’t likely to be worth investigating or notification may cause significant harm, this operates in favour of maintaining confidentiality.
the impact on the mother or others – if the child was conceived as a result of a rape then there could be very serious consequences. But excessive weight shouldn’t be given to short term difficulties of embarrassment or ‘social unpleasantness’.
Cultural and religious factors – these could increase the risks of notification but also under pin the importance of the child being in a family placement.
Does the court know who the father/family members are? Notification can only take place if there is someone to notify. It is difficult to see how a mother can be forced to give up this information if she refuses. But in some cases it maybe worth trying to find out.
The impact of delay – investigation of other family members will inevitably take time and the court needs to consider what impact that might have on the child, such as losing a particularly suitable adoptive placement.

Reasons given not to inform the father

Mother A

She has a history of depression for which she takes medication and did not feel physically or emotionally capable of caring for him.
The father has also suffered with mental health issues.
She had terminated two previous pregnancies, both by A’s father, with his agreement.
He would agree with the decision for A to be adopted as he would not want to be involved in the child’s life.
Her own mother would agree with the decision to adopt A. She too has mental health issues and her brother has learning difficulties. Other maternal family members are too old to care for A.

Mother B

If she cannot look after B herself, she would rather she was adopted than be placed in the care of her family, so that B should not experience the abuse she herself suffered.
She is scared of her family’s reaction if they found out that she had a child outside wedlock with someone of a difference race and cultural heritage.
The family would therefore be unlikely to respond positively to being told of B’s existence, and it would cause them needless upset and distress.
An assessment of her family would be likely to be negative and little benefit would be gained.
The father (the first man so named) did not want to play any part in the baby’s life and even booked a termination for the mother. He was violent towards her while she was pregnant. He is involved with drugs and gangs and is currently serving a long prison sentence. She is scared of what he would do if she shared information about him with the local authority.

Mother C – who said her child had been conceived by rape

Caring for C would remind her of the rapes.
She and the father have an unconventional relationship. Although they are married he works away, was infrequently at home and rarely provided care for the children. They permanently separated in September 2018, following the rapes, but the father visits the home to see the children.
The father has a bad temper and on one occasion punched and damaged a door. He has been intimidating and controlling. She is scared that he would assault her if he found out that she had kept C’s birth a secret.
He would humiliate her by informing members of the local community. She would then have to leave the area with all her children.
He would not be willing or able to care for C.
There is no other maternal or paternal family member who would be willing or able to care for C.

The Court decided that other relatives must be told in all cases – despite the very distressing circumstances of C’s conception, her father had parental responsibility for her. This indicates that very serious reasons are necessary to justify not informing other relatives – the mother’s desire not to tell anyone is important, but it can rarely be determinative.

The importance of freedom of movement.

Why might a child be deprived of their liberty?

Consent and exercise of parental responsibility.

Necessary treatment for mental illness

Necessary protection for the mentally incapacitated

Detention by the police

Secure accommodation under the Children Act 1989

How will the child make his wishes known to the court?

Issues to consider when applying for a secure accommodation order

The inherent jurisdiction

Children’s homes and unregulated placements

Exercise of the inherent jurisdiction if a placement is in Scotland

So what happens if a child under 16 is placed in an unregulated placement but there is no issue of deprivation of liberty?

Refusal to make a deprivation of liberty order

Further reading

Background

Recording court proceedings

Order restricting communication with the court office

Violence

Parental Alienation

Journalists and the ‘secret family courts’

Happy New Year?

Historical context – the birth of the ‘trans child’

Gillick competence

Two High Court cases. Re J and Re TP

The Family Procedure Rules 2010.

Case law

Conclusions

The identification of parental alienation

The likely response of the Courts

Common pitfalls if the court decides to transfer residence

Further reading

Reasons given not to inform the father