Author Archives: Sarah Phillimore

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;

(c) ensuring that the parties are on an equal footing;

(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 

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.

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

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.

Some more recent authorities are;

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.

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. 

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.  . 

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 

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. 

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

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. 

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

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.

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

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):

  1. 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;
  2. whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
  3. the manner in which a party has pursued or defended its case or a particular allegation or issue; 
  4. 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 :

  1. The child’s welfare is paramount, the court adopts a quasi-inquisitorial approach and there are many possible outcomes;
  2. 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’;
  3. The court can assume that the parties are not generally motivated by malice;
  4. The parties need to work together and one should not be stigmatised as ‘the loser’;
  5. 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.

Further reading

Family Justice Council Draft Guidance on responding to alienating behaviours August 2023

Sarah Phillimore 

St Johns Chambers

1st November 2020 

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

  1. She has a history of depression for which she takes medication and did not feel physically or emotionally capable of caring for him.
  2. The father has also suffered with mental health issues.
  3. She had terminated two previous pregnancies, both by A’s father, with his agreement.
  4. He would agree with the decision for A to be adopted as he would not want to be involved in the child’s life.
  5. 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

  1. 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.
  2. 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.
  3. 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.
  4. An assessment of her family would be likely to be negative and little benefit would be gained.
  5. 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

  1. Caring for C would remind her of the rapes.
  2. 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.
  3. 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.
  4. He would humiliate her by informing members of the local community. She would then have to leave the area with all her children.
  5. He would not be willing or able to care for C.
  6. 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.

Children, competence and consent: An overview.

Keira Bell’s case, which began on October 7th 2020 has provoked a lot of comment about the issues of children and their capacity to consent to medical treatment. This is an attempt to provide a quick over view in easy to understand language. If you are interested in this area in greater detail, I set out some ‘further reading’ at the end of this post.

Medical treatment is only lawful if given in an emergency or with informed consent.

The case of Montgomery (Appellant) v Lanarkshire Health Board (Respondent) (Scotland) [2015] UKSC 11 deals with what risks about birth should have been shared with an adult patient – but is a useful discussion of the general parameters of what can be meant by ‘informed consent’ – patients do not have the medical knowledge of doctors, may not know what questions to ask. Doctors have a duty to reveal and discuss ‘material’ risks with a patient.

At para 77 the court comments approvingly on 2013 guidance to doctors:

Work in partnership with patients. Listen to, and respond to, their concerns and preferences. Give patients the information they want or need in a way they can understand. Respect patients’ right to reach decisions with you about their treatment and care.”

In a genuine emergency, doctors are unlikely to be penalised for treating a patient on the spot. In all other cases, medical intervention to which the patient does not consent is likely to be a crime.

Someone is said to lack capacity if they can’t make their own decisions because of some problem with the way their brain or mind is working. This could arise due to illness, disability or exposure to drugs/alcohol. It doesn’t have to be a permanent condition.

Some people lack capacity because their disability or injury brings them under the terms of the Mental Capacity Act and they cannot understand or weigh up the necessary information. These cases may have to go to the Court of Protection so the Judge can decide what is in their best interests.

Some people lack capacity because they are a child. A child is a person aged between 0-18. While most people would agree that a child aged 4 is unable to make any serious decisions on his own, the waters get muddier the older a child gets, as their understanding and desire for autonomy increases.

A child over 16, who doesn’t have any kind of brain injury or disability, is presumed to be able to consent to medical treatment as if an adult, under the Family Law Reform Act 1969.

Children under 16 may have capacity if they have enough understanding of the issues – this is called Gillick competence, from the case of the same name.

Adults who have parental responsibility for a child can give consent when a child cannot. However, the older the child gets, the more likely there is to be tension between what the adult and child think is best.

If the child, parents or doctors cannot agree about what treatment is best, then this has to come before the court to decide. A very sad example of this which got a lot of media attention, is the case of Alfie Evans, a toddler whose parents disagreed very strongly with the medical advice that his life should not be prolonged.

Applying the basic principles to the Bell case

I have seen some very odd comments about this case. However, first – if it is correct that Bell’s lawyers are arguing that NO child ever could consent to taking puberty blockers, I agree this is a bold submission and would certainly seem to be moving away from the clear statutory recognition of the likely autonomy of the 16 year old child. It may be that this submission rests on the grave concerns about the experimental nature of such treatment – and certainly the Tavistock does not seem to be able to provide the court with much if any hard data about the longer term consequences of this.

But any suggestion that the Bell case will somehow ‘destroy’ Gillick competence and deny 15 year old girls the right to contraception or abortion, is simply wrong.

The first and basic point is that Gillick was decided by the House of Lords – now the Supreme Court. The High Court has no power to change or alter the decision of the Supreme Court. Second point is that even if Bell’s case does succeed in getting a declaration from the High Court that NO child can ever consent to taking puberty blockers for transition, this will not impact other areas of decision making for children about medical treatment.

This is because the nature and quality of such treatments is well known and researched. It is therefore possible to weigh up the consequences, benefits and risks, in a way many would argue is simply impossible for puberty blockers given to aid ‘transition’ rather than to deal with precocious puberty.

When the nature and quality of such treatments are not known and doctors are unhappy to offer it, or a child (or parents) is refusing consent to a treatment that the doctors say is essential, then the matter will need to come to court.

Conclusion

I await the judgment in Bell with very keen interest. It will certainly need to cover all the areas I briefly touch on above, and hopefully will make such vital issues much clearer for many.

I accept a small minority of children DO need access to puberty blockers to prevent the development of sex characteristics they find very distressing. But I think they will be a tiny minority. I think the evidence to dates shows very clearly the impact of some kind of social contagion around issues of ‘gender identity’ which has led to staggeringly high numbers of children seeking ‘transition’ as a cure all for their emotional distress.

While I do not agree that NO child is capable of consenting to take these drugs, I certainly agree that the evidence base which will inform them of the risks and benefits is lacking, and dangerously so.

EVERY child should be given the right information in order to make these decisions.

Further reading

How do children consent? The interplay between Gillick competence and Parental Responsibility CPR January 2020

A child’s consent to transition; the view from Down Under CPR September 2020

In whose best interests? Transitioning pre school children Transgender Trend October 2019

The Impossibility of Informed Consent for Transgender Interventions: The Risks Jane Robbins April 2020

Freedom to Think: the need for thorough assessment and treatment of gender dysphoric children Marcus Evans June 2020

A child’s consent to transition: the view from Down Under

Imogen (No. 6) [2020] FamCA 761; (10 September 2020)

This is a post by Sarah Phillimore.

This is a case from the Family Court in Australia – so of interest to those of us in England and Wales as our jurisdictions share a common history. It is a case that makes much of Gillick competence which is certainly a familiar domestic concept and I have written about it in more detail here. One key difference however is that Imogen was over 16 years old – therefore if this was a case in England or Wales, she would be considered competent to consent to medical treatment as if she were an adult, by virtue of the Family Law Reform Act 1969.

I have written about the changing attitudes of the High Court to transitioning pre-schoolers here.

Facts of Imogen’s case

Imogen was born a boy called Thomas. She was diagnosed with Gender Dysphoria and was taking puberty suppression medication. When she was aged 16 years and 8 months old, she wished to move to ‘stage 2 gender affirming hormone treatment ‘. Her father supported this but her mother did not, disputing both the diagnosis of Gender Dysphoria and that Imogen was Gillick competent, i.e. able to make the decision to take hormones. The mother wanted Imogen to have therapy, rather then medical treatment.

Both the Australian Human Rights Commission and the Australian Attorney General were intervenors in the case, so its importance is clear. There was also an Independent Children’s Lawyer (ICL).

The court had a variety of questions to grapple with. If there is a dispute about medical treatment for an adolescent, was it mandatory to make an application to court to resolve that dispute? If Imogen was Gillick competent – could she make her own decision without her parents’ consent? If the court had to resolve the dispute then what was the legal test?

The court found that where there was such a dispute about the existence of a medical condition or the need for treatment, it was mandatory to make an application to the court – and interestingly there was official guidance that got the law wrong about that. The court decided that the test was what was in Imogen’s best interests – and it was for her to receive the treatment she wanted.

The discussions in this case are very relevant for every common law jurisdiction – there has been a staggering increase in recent years of the number of children wishing to ‘transition’ from one sex to the other and some interesting legal actions on the horizon, criticising the swiftness with which children are put on the path of ‘affirmation’ that leads to medication and surgery.

What is the best way to treat children with Gender Dysphoria?

The court acknowledged that this case was taking place within a wider debate about treatment for children with gender dysphoria, but the court was focusing on what was best for Imogen. Expert evidence was heard which was split roughly into three camps.

Imogen’s treating medical practitioners followed “The Australian Standards of Care and Treatment Guidelines: For trans and gender diverse children and adolescents” (“the Australian Standards”) which adopted a multi-disciplinary approach to treatment using gender affirming hormones.

The mother relied on an expert psychiatrist Dr D’Angelo, who advocated a more conservative approach, preferring psychotherapy rather than medication.

Reference was also made to the “Informed Consent Model” where general practitioners are willing to prescribe gender affirming hormone treatment to 16 and 17 year old adolescents without knowing whether their parents or legal guardians consent.

It was clear that Dr C – Imogen’s treating psychiatrist – and Dr D’Angelo adopted “fundamentally different diagnostic frameworks, methods, and conceptualisation of the experience of Gender Dysphoria”.

The court – annoyingly – describe ‘Gender Dysphoria’ at para 22 as

Gender Dysphoria is a term that describes the distress experienced by a person due to incongruence between their gender identity and their gender assigned at birth.

This conflation between sex and gender is very typical and has not assisted clarity in the general debate about the proper approach to a child who rejects the sex with which they were born.

The Australian Standards provide (at page 11) that the optimal model of care for trans and gender diverse adolescents who present to services involves a coordinated, multidiscipline team approach. There are two stages to treatment – Stage 1 is ‘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’. Some of the effects of this medication are irreversible and likely to lead to the child becoming infertile.

The court noted at paragraph 27 that the Australian Standards gave incorrect guidance as to the law about when an adolescent could consent to stage 2 treatment – an interesting parallel to the situation in England and Wales where a number of official guidances around treatment of trans children are being challenged as unlawful.

At page 7, the Australian Standards state, “current law allows adolescent’s clinicians to determine their capacity to provide informed consent for treatment. Court authorisation prior to commencement of hormone treatment is no longer required”… “…[a]lthough obtaining consent from parents/guardians for commencement of hormone treatment is ideal, parental consent is not required when the adolescent is considered to be competent to provide informed consent”.

Further investigation of Gillick competence.

Australian courts have adopted the approach explained by the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL 7;  [1986] AC 112, that the parental power to consent on behalf of a child diminishes as the child’s capacities and maturities grow: a child is capable of giving informed consent, and a parent is no longer capable of consenting on the child’s behalf, when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed.

However, at paragraph 29, the court noted that regardless of the child’s Gillick competence, its permission was required for non-therapeutic procedures, in particular those that required in combination: 

  1. invasive, irreversible and major surgery;
  2. a significant risk of making the wrong decision, either as to a child’s present or future capacity to consent or about the best interests of a child who cannot consent; and
  3. Where the consequences of a wrong decision are particularly grave.

The case of Re Kelvin, found that both stages of treatment were therapeutic and therefore, if the child, the parents and the medical practitioners agreed the child was Gillick competent, there was no need to involve the courts – the child could decide what treatment they were willing to accept.  

But the court was clear, at paragraph 35 that the matter MUST come before a court if a parent or doctor could not agree

  • If the child was Gillick competent
  • The diagnosis of Gender Dysphoria
  • or the proposed treatment for Gender Dysphoria

If the only issue in dispute was Gillick competence, the court would either declare the child competent or not – if competent, the child could consent to whatever treatment they liked.

BUT if there was a dispute about diagnosis or treatment, it was then up to the court to determine the diagnosis and decide what treatment was appropriate on the basis of what was in the adolescent’s best interests. Therefore, if the parents dispute the need for treatment, a doctor should NOT agree to provide it to even a Gillick competent adolescent without the authorisation of the court.

This is an interesting re-assertion of the parens patriae duty of the court – the protective and paternalistic jurisdiction it has over children to keep them safe from harm and certainly goes against the stated trend of current UK guidance that ‘parental responsibility’ is of little or even no importance against a child’s stated wish to ‘change sex’ – apparently even when the child is far too young for Gillick competence to be likely.

Why is it important to come to court to resolve these disputes? The Attorney General recognised two good reasons

  • Without the court’s authorisation, if a doctor gets it wrong about a child being Gillick competent, they risk criminal or civil liability for providing treatment, as the child cannot consent.
  • or a doctor may override the parental responsibility of the parent who does not consent, which puts the doctor in an invidious position.

Why is the finding of  Gillick competence of an adolescent not determinative, if parents do not agree about treatment?

This is the key question, not only for this court but for all others who operate according to the principle of Gillick competence. If we are saying that an adolescent is competent to make their own decisions, why isn’t that an end to the matter? This is because the court retains the ‘parens patriae’ jurisdiction over a child – to act as if the child’s parent.

There was no disagreement, that the court had the power to make an order against the wishes of a Gillick competent child, but it was 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).

No case was identified where a court had refused to authorise therapeutic treatment where a Gillick competent child had consented.

At para 59 the court was clear it should determine the dispute about the nature of the treatment to be given and in doing so the court should have regard to the best interests of the child as the paramount consideration and give significant weight to Imogen’s views in accordance with her maturity and level of understanding (Re Jamie, per Bryant CJ at [140](f)).

There is an interesting suggestion at para 57 about

the proliferation of academic and other writings since Re Kelvin and the emergence of alternate thinking about treatment and questions arising from the state of knowledge in respect of the long-term implications of current medical treatment for Gender Dysphoria.

Which suggests the court was certainly open to considering whether Stage 2 treatment was really therapeutic after all.

The Informed Consent Model.

The court went on to consider the legality of this.

Dr C gave evidence that “the Informed Consent Model” of care in Gender Dysphoria is being adopted by an increasing number of medical practitioners. This model sees general practitioners proceeding with the prescription of gender affirming hormone therapy to adolescents over 16 years of age who express the desire to do so and who are assessed by the general practitioner as being able to give informed consent to the treatment, without the general practitioner making any inquiry as to whether or not the parents or legal guardians of the adolescents give their consent. Dr C opines that there is confusion in respect of the legality of the Informed Consent Model.

The court was very clear. This was not lawful. See para 63

This judgment confirms the existing law is that any treating medical practitioner seeing an adolescent under the age of 18 is not at liberty to initiate stage 1, 2 or 3 treatment without first ascertaining whether or not a child’s parents or legal guardians consent to the proposed treatment. Absent any dispute by the child, the parents and the medical practitioner, it is a matter of the medical professional bodies to regulate what standards should apply to medical treatment. If there is a dispute about consent or treatment, a doctor should not administer stage 1, 2 or 3 treatment without court authorisation.

Conclusion

This re-affirmation of the importance of parental responsibility and court oversight is very important. Both have run the risk of being over looked or even over ridden by some who push an ‘affirmation model’ very insistently, to the extent that any challenge or even mild objection is characterised as ‘hate’ and ‘bigotry’. It will be interesting to see how in our jurisdiction, the Family Law Reform Act may shine a different light on the statutory competence of children aged over 16.

I concede there is a distinction between a child who seeks life changing treatment and a child who refuses life saving treatment, but we must surely all be able to agree that for anyone, serious surgery or medication must only be accessed via valid consent.

In the judgment, some very interesting discussion then follows about the emerging literature in the field of Gender Dysphoria and how to treat it – although I wonder if the reliance on ‘extremely high rates of suicide’ discussed below is a reference to now thoroughly debunked claims. But there can be no doubt at all that the way forward is by data and by discussion. It is not ‘transphobic’ or ‘hateful’ to care about the health of our children, both mental and physical.

In August 2019 the Federal Minister for Health wrote to The Royal Australian College of Physicians (RACP) seeking advice on the treatment of Gender Dysphoria in children and adolescents in Australia. The RACP responded on 5 March 2020. 

In that response, the RACP noted that trans and gender diverse children and adolescents are a very vulnerable population, experiencing stigma and extremely high rates of depression, self-harm, attempted suicide and completed suicide. Importantly, the RACP described treatment for Gender Dysphoria as an emerging area of healthcare where existing evidence on health and wellbeing outcomes of clinical care is limited due to the relatively small number of studies, the small size of study populations, the absence of long-term follow up and the ethical challenges of robust evaluation when control (no treatment) is not acceptable. The College relevantly observes that similar limitations on the existing evidence of healthcare apply to other conditions which affect small segments of the population, such as rare cancers.

The College expressed the view that addressing gaps in the evidence base is important, although notes that further scientific evidence may take a considerable period of time to produce.In the meantime, the College supported the principles underlying the Australian Guidelines, and specifically the emphasis on the multidisciplinary approach to providing person-centred care which priorities the best interests, preferences and goals of the child or adolescent. The College recommends that treatment should be holistic, developmentally informed, child centred and individualised. In order to facilitate a higher level of informed consent, the College recommends that patients and families must be provided with information about the limitations of the available evidence regarding Gender Dysphoria and there should be informed discussion of the burdens and benefits of treatment and options in a way each child or adolescent can understand. The College points to differences across Australia in the access, funding and delivery of care and treatment for Gender Dysphoria. It recommends the development of a national framework for service provision and outcomes monitoring and believes that that is the best way to ensure consistency in the outcome of data collection across jurisdictions.

Further Reading

The right to be fully informed – This site collates and summarises the medical literature and legal issues surrounding puberty blockers so that parents and doctors can be more fully informed. The information should not be taken as medical advice.

  

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‘Similar Fact’ evidence in family cases

This is a post by Sarah Phillimore.

The case of R v P (Children: Similar Fact Evidence) [2020] EWCA Civ 1088 is of interest to family lawyers for its technical examination of when ‘similar fact’ evidence should be allowed in family cases.

But it is also of wider interest for how it illustrates what I argue are the primary reasons family cases go off the rails – not because Judges and lawyers ignore or don’t care about issues of violence and coercive control, but because lack of judicial continuity and legal aid inevitably cause chaos.

Background to the proceedings

The parents were in a relationship from 2013 to 2017. After they separated, the father made application for contact. The proceedings soon became a ‘procedural muddle’; there was no judicial continuity, with at least 15 different judges involved, and six attempts at a finding of fact hearing to determine the truth or otherwise of the mother’s allegations. The parties had ‘inconsistent or non existent’ legal representation throughout 2019.

In 2018 the father began a relationship with Mrs D. She was involved in court proceedings in Wales regarding her children and their father, Mr D. The court in Wales ordered a section 37 report which raised serious concerns about her children’s welfare and the nature of her relationship with the father. On the advice of the police, the Welsh local authority contacted the local authority in London who were involved with the father’s contact application.

The report from Wales revealed concerning information about the degree of influence exerted over Mrs D by the father. In December 2018, the court in Wales removed the children from Mrs D’s care and placed them with their father. Mrs D did not engage with the local authority or make any efforts to see her children and the Welsh local authority concluded that the father had behaved in a coercive and controlling way towards Mrs D.
The mother asserted that the Welsh reports showed that the father had subjected Mrs D to the same kind of coercive control that had been directed against her.

By January 2020 the mother had secured legal representation and a three day finding of fact was listed for the summer. There was a pre trial review on June 24th, which was held remotely. There were serious difficulties in connection and the Judge ended up with limited time to consider the issues.

The hearing before the judge

With regard to the Welsh evidence, the Judge took the view that this had been excluded at a July 2019 hearing, and she was very critical of the mother’s solicitors for including this evidence in the court bundle. She pointed out that the reports contained hearsay and the father could not have a fair hearing if the reports were admitted on the assumption they were true.

The mother’s counsel replied that the father would have the opportunity to challenge the report’s contents but the Judge disagreed and was clearly exasperated that it was unclear which witnesses would be coming to court to give evidence. She wanted the fact finding hearing to go ahead. She permitted the mother’s own parents to be called as witnesses, but refused the mother’s application to rely on the reports from the Welsh local authority or the letters provided by Mr D and Mrs D’s parents.

The appeal – analysis of the admissibility of similar fact evidence

The mother appealed. It was argued on her behalf that the Judge was wrong to exclude this evidence as it was highly relevant, both to the fact finding hearing and to any welfare decision. The evidence concerning the father’s relationship with Mrs D and the D children showed a strikingly similar pattern of behaviour to that alleged by the mother. The judge did not consider their relevance at all, nor did she carry out the necessary analytical exercise in relation to admission or exclusion, despite having been referred to the legal principles. She was wrong to have regard only to fairness to the father when exclusion of such significant evidence would be unfair to the mother.

The Court of Appeal considered the relevant procedural rules, practice directions and case law to give general guidance to the approach a court should take when considering the admissibility of similar fact evidence in family cases.

The court has a broad power to control evidence and limit cross examination pursuant to the Family Procedure Rules 2010 para 22. Hearsay evidence is admissible in proceedings concerning children by virtue of the Children (Admissibility of Hearsay Evidence) Order 1993. Part 23 of the Rules includes provisions for the management of such evidence.

Practice Direction 12J applies when it is alleged or admitted or there is other reason to believe that the child or a party has experienced domestic abuse perpetrated by another party or that there is a risk of such abuse. Paragraph 19 of the Practice Direction contains a list of matters that the court must consider when making directions for a fact finding hearing in a case of this kind, including at paragraph (d) what evidence is required to determine the existence of coercive, controlling or threatening behaviour, or of any other form of domestic abuse.

The final report of the expert panel to the Ministry of Justice in June 2020: Assessing Risk of Harm to Children and Parents in Private Law Children Cases notes that a focus on recent incidents may fail to acknowledge a pattern of behaviour over a long period of time (page 55) and expresses concern about the limitations of Scott Schedules, which may tend to disguise the subtle and persistent patterns of behaviour involved in coercive control, harassment and stalking (page 94).

The need for the court to recognise patterns of behaviour was also discussed by Baker J in Re LG (Re-opening of Fact-finding) [2017] EWHC 2626 (Fam) at [27]

Similar fact evidence in civil cases was discussed In O’Brien v Chief Constable of South Wales Police [2005] UKHL 26; [2005] 2 AC 534. The court considered the two necessary questions for the court considering similar fact evidence which apply equally to civil and family proceedings.
• To be admissible, evidence it must be relevant i.e. it must be logically probative or disprobative of some matter which requires proof.
• If legally admissible, should it be admitted? This is a more difficult issue and requires an often difficult and sometimes finely balanced assessment as to the significance of such evidence in the context of the case as a whole. There is a possibility that such evidence could place a considerable burden on the party who wishes to challenge it, particularly if it relates to something that happened some time ago; documents may be lost and witness recollections fade.

The similar fact evidence in this case involved ‘propensity’ so the Court of Appeal went on to consider to what extent do the facts relating to the other occasions have to be proved for propensity to be established? That question was answered by the Supreme Court in the criminal case of R v Mitchell [2016] UKSC 55 [2017] AC 571.

In summary, the court must be satisfied on the basis of proven facts that propensity has been proven, in each case to the civil standard. The proven facts must form a sufficient basis to sustain a finding of propensity but each individual item of evidence does not have to be proved.

The Court of Appeal also considered the family case of f Re S (A Child) [2017] EWCA Civ 44, where similar fact evidence was excluded on the basis that evidence about rape of a previous partner had only recently surfaced and the previous partner was not being called to give evidence. However, in the present case, the father was well aware of the allegations against him which were contained in professional reports.

Applying all these principles, the Court of Appeal were unanimous that the judge’s decision to exclude the evidence relating to the father’s relationship with Mrs D could not stand. The hearing had clearly taken place in very difficult circumstances but nevertheless, the necessary analysis required to determine the admissibility of the evidence was not carried out.

The ‘procedural muddle’

This is worthy of further consideration, which is set out at para 10 of the judgment. Perhaps most astonishingly was the role played by Mrs D as ‘MacKenzie friend’ to the father. It is difficult to understand how the court felt that could be appropriate in all the circumstances of this case.

Returning to the proceedings concerning these children, the issue of the admission of evidence relating to the father’s relationship with Mrs D was played out in an unsatisfactory way against the background of repeated attempts to hold a fact-finding hearing.  In brief, the issue arose at four hearings before the one with which we are concerned on this appeal:

(1) In February 2019, the court ordered the mother’s solicitors to write to the court in Wales seeking disclosure of the two reports of the Welsh local authority and recited that the court was of the view that those reports would be of assistance in the current proceedings.  The father was absent from that hearing.

(2) In May 2019, a deputy district judge directed the updating section 7 report from the London local authority in order to take account of the contents of the Cardiff reports, which had by then been received.  The mother was unrepresented.  The father sought a direction for the attendance of KS and she was invited to attend, though the court indicated that the fact-finding hearing would go ahead in any event.  The non-molestation order against the father was extended.  The father’s application for a continued non-molestation order against the mother (transferred from the North-West in February) was dismissed as being without merit. 

(3) In July 2019, the parties appeared before the same deputy district judge.  The mother was unrepresented.  The order recorded that the court would not be assisted at the fact-finding hearing by the evidence of KS.  What was meant by this was obscure until an email was discovered during the course of this appeal which showed that the father’s former solicitors had stated that they did not require the attendance of KS.  Until then, the meaning of the order was disputed, it being suggested on behalf of the father that it showed that the court had excluded the Welsh reports.

(4) In September 2019, when the matter came before a  district judge, both parents were unrepresented, with the father, bizarrely, being allowed to have Mrs D as his ‘MacKenzie friend’.  The court recorded that the mother had sought permission to rely on the Welsh reports but that permission was refused on the basis that it had been refused at the July hearing and that nothing had changed.

Without judicial continuity, legal representation for parents, speedy fact findings and robust enforcement these cases are doomed from the outset and it doesn’t matter how many ‘Inquiries’ the MoJ hold or how many campaigners insist on further expensive training for Judges. Denial of this obvious truth is magical thinking at its finest and I grow very tired of it.

Parental Alienation – what is it? And what can the courts do about it?

This is a post by Sarah Phillimore

I am writing this post because I am concerned that there is a strong view in certain circles that ‘parental alienation’ either does not exist or is very rare and used as a deliberate strategy by violent men to deny contact with children to the mothers they oppress.

I don’t agree that parental alienation doesn’t exist. There is abundant evidence that it does. Nor do I agree that falsely asserting parental alienation as a strategy is commonplace, although I am sure it does happen.

Therefore I find it concerning to see the very existence or importance of parental alienation ‘downgraded’ by a number of academics and lawyers – particularly when those academics are involved in the recent MoJ report into private law cases. I have set out my criticisms of and concerns about this report here.

I endeavour always to render my criticisms reasonable, balanced and evidenced. So it was surprising and rather shocking to be called a ‘troll’ on social media and accused of ‘picking on’ victim of DV by one of the academics involved in a literature review for the MoJ.

This is not a helpful response from anyone. It is a particularly bizarre and inappropriate response from someone with a seat at the table of political influence.

This view about parental alienation as a ‘grand charade’ is set out here by Rachel Watson in July 2020. She says

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.

I don’t agree with this. It does not reflect my own experience of 20 years in the family courts. That others seem to have a profoundly different experience is worrying. I would like to know what explains the gulf between my understanding and theirs. Given that this will be impossible to achieve in a blog post, I will restrict myself here to addressing the issue of parental alienation as a ‘grand charade’.

What do the courts say about parental alienation?

Let’s look at just two examples from published court judgments. There are sadly many, many more. I hope even this brief discussion makes it clear that ‘parental alienation’ is a phenomenon that exists and which does tremendous harm. Both the alienating parents in these cases were mothers; that does not mean that this is a sex dependent failure of parenting. Fathers can and do alienate their children from their mothers. It is wrong regardless of the sex of the parent who does it.

 D (A child – parental alienation) (Rev 1) [2018] EWFC B64 (19 October 2018).

The child D was born in 2005. Proceedings had been ongoing for over ten years, albeit with a four year respite from 2012 – 2016,  and had cost a staggering amount of money for both parents – about £320,000 over ten years.

There was a residence order made in the father’s favour in 2011 and the mother’s application to appeal was refused in 2012. Following a relatively peaceful four years, the mother then refused to return D to his father’s care in November 2016 and the father did not see D again until March 2017. A final hearing was listed for April 2018 after the instruction of a psychologist.

in early 2018 D made allegations of a serious assault upon him by the father and contact against ceased. The police became involved but took no further action and the Judge granted the father’s application in August 2018 that D give evidence at the finding of fact hearing.

D gave evidence and was very clear, saying (para 74):

I just want a normal life, living in happiness with mum. I cannot go back to my father’s. I was promised by my mum and the police officer that dad wouldn’t hurt me ever again. Now, I am here in court because he hurt me bad. Why can’t I just have a life that isn’t based on court and stress? I just want a life that I can live not live in fear from, please.’

D’s guardian put forward a schedule of six allegations that D made against his father. The court noted the evidence of the psychologist Dr Spooner at para 85.

D presented with what seemed like a pre-prepared and well-rehearsed script of all the things he wanted to tell me about his father. He took every opportunity to denigrate him, his family and his partner. Each time I attempted to ask him about issues not related to his father, such as school, hobbies and so on, he quickly derailed himself and continued on his frivolous campaign of denigration.

The court heard a great deal of evidence from social workers and other experts about the alleged injuries suffered by D. It is disturbing to note how the Judge was not assisted by some of the evidence from the local authority, not least because the social worker who prepared the section 37 report was working from the assumption that everything a child said must be true.

The father denied assaulting D but had to hold his arms when D was being aggressive towards him.  The Judge did not find any of the allegations proved; he found the father and his partner to be honest witnesses and this was a case where the mother was determined to ‘win’ at any cost. The judge found that she had deliberately alienated D from his father.

Analysis of what is meant by ‘parental alienation’

From paragraph 165 the Judge considered the issue of parental alienation. At para 169 he refers to the research Dr Julie Doughty at Cardiff University. She comments:

There is a paucity of empirical research into parental alienation, and what exists is dominated by a few key authors. Hence, there is no definitive definition of parental alienation within the research literature. Generally, it has been accepted that parental alienation refers to the unwarranted rejection of the alienated parent by the child, whose alliance with the alienating parent is characterised by extreme negativity towards the alienated parent due to the deliberate or unintentional actions of the alienating parent so as to adversely affect the relationship with the alienated parent. Yet, determining unwarranted rejection is problematic due to its multiple determinants, including the behaviours and characteristics of the alienating parent, alienated parent and the child. This is compounded by the child’s age and developmental stage as well as their personality traits, and the extent to which the child internalises negative consequences of triangulation. This renders establishing the prevalence and long-term effects of parental alienation difficult…’

At para 170 the Judge considers the CAFCASS assessment framework for private law cases. The assessment contains a 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 on 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.

Re A (Children) (Parental alienation) [2019] EWFC

The Judge said this about the case

In a recent report to the court, one of this country’s leading consultant child and adolescent psychiatrists, Dr Mark Berelowitz, said this: ‘this is one of the most disconcerting situations that I have encountered in 30 years of doing such work.’ I have been involved in family law now for 40 years and my experience of this case is the same as that of Dr Berelowitz. It is a case in which a father leaves the proceedings with no contact with his children despite years of litigation, extensive professional input, the initiation of public law proceedings in a bid to support contact and many court orders. It is a case in which I described the father as being ‘smart, thoughtful, fluent in language and receptive to advice;’ he is an intelligent man who plainly loves his children. Although I have seen him deeply distressed in court because of things that have occurred, I have never seen him venting his frustrations. It is also a case in which the mother has deep and unresolved emotional needs, fixed ideas and a tendency to be compulsive.

The Judge felt it was important for this judgment to be published, albeit heavily anonymised to protect the identities of the children.

My intention in releasing this judgement for publication is not because I wish to pretend to be in a position to give any guidance or speak with any authority; that would be presumptuous, wrong and beyond my station. However, this is such an exceptional case that I think it is in the public interest for the wider community to see an example of how badly wrong things can go and how complex cases are where one parent (here the mother) alienates children from the other parent. It is also an example of how sensitive the issues are when an attempt is made to transfer the living arrangements of children from a residential parent (here, the mother) to the other parent (the father); the attempts to do so in this case failed badly.

The UK Parental Alienation Study

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.

Conclusions

Of course, the same criticisms can be made about this survey as I made about the MoJ survey. We have to be careful about the results of a survey conducted with the self selecting. The MoJ reassured itself this was ok because the wide ranging review of case law and literature supported the view of the self selecting respondents that family courts routinely ignore issues of violence.

The problem however, as I pointed out above, is when you have someone conducting your literature review who thinks that those who talk about parental alienation as a real thing are ‘trolls’.

It is my view that the case law abundantly supports the findings of the Good Egg Safety report. Parental alienation exists and it does enormous harm to the children and parents caught up in it. It is not restricted to women as perpetrators – but I am sad to say that in all the cases of parental alienation in which I have been involved over 20 years, the majority of those found to be perpetrators by the court were women.

It also does enormous harm to the rule of law and respect for court orders. Pretending it doesn’t exist or that it exists primarily as a strategic tool for abusive men to further their abuse is plain wrong. I suspect those who promote this theory know on some level how wrong they are, given the level of abuse and insults they throw at anyone who challenges them.

You may not like what I say. You may – with some justification I concede – accuse me of rudeness or abruptness in the way I say it. But I am no troll. That is a baseless, insulting assertion and it will not help your arguments gain or sustain any credibility whatsoever.

For those now asking in despair – but what do we DO about all this? I set out some suggestions in this post. But as many of them will involve a significant financial investment in both judges and court buildings, I do not expect to see any change in my life time. But I will continue to do what I can to promote honesty and openness in the public debate about such important issues.

Further reading

Case Law

A case where shared residence was agreed after 10 year dispute – see Re J and K (Children: Private Law) [2014] EWHC 330 (Fam)

See Re C (A Child) [2018] EWHC 557 (Fam) –  Unsuccessful appeal to the High Court by a mother against a decision which transferred the residence of C, aged six, to her father, in light of the mother’s opposition to progressing C’s contact with her father. Permission to appeal was refused as being totally without merit.

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.

Re A and B (Parental Alienation: No 1) 25 Nov 2020 [2020] EWCH 3366 (Fam)

X, Y and Z (Children : Agreed Transfer of Residence) [2021] EWFC 18 (26 February 2021)

Articles and Research

What is the evidence base for orders about indirect contact?

See this article from the Custody Minefield about how intractable contact disputes can go wrong or get worse.

Address from the President of the Family Division to Families Need Fathers, June 2018

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.

The Cafcass Child Impact Assessment Framework (CIAF) sets out how children may experience parental separation and how this can be understood and acted on in Cafcass. The framework brings together existing guidance and tools, along with a small number of new tools, into four guides which Cafcass private lawpractitioners can use to assess different case factors, including:

  • Domestic abuse where children have been harmed directly or indirectly, for example from the impact of coercive control.
  • Conflict which is harmful to the child such as a long-running court case or mutual hostility between parents which can become intolerable for the child.
  • Child refusal or resistance to spending time with one of their parents or carers which may be due to a range of justified reasons or could be an indicator of the harm caused when a child has been alienated by one parent against the other for no good reason.
  • Other forms of harmful parenting due to factors like substance misuse or severe mental health difficulties.

Resources and Links recommended by the Alienation Experience Blog

Useful analysis of case law from UKAP.ONE

The Empathy Gap 14th June 2020 – Commentary on Adrienne Barnett in “A genealogy of hostility: parental alienation in England and Wales”, Journal of Social Welfare and Family Law (Jan 2020). The paper discusses the role of parental alienation within the English and Welsh family courts.

The Empathy Gap 11th June 2020 – Commentary on “U.S. child custody outcomes in cases involving parental alienation and abuse allegations: what do the data show?”, By Joan S. Meier, Journal of Social Welfare and Family Law 42:1, 92-105 (2020)

Urgent appeals in cases where the court orders removal of a child

This is a post by Sarah Phillimore

What do you do if the court orders the removal of a child and you need to appeal against that order urgently? If the removal is set to happen that day you will need to ask the court to ‘stay’ the order while you seek an urgent appeal.

The case of N (Children: Interim Order/ Stay), Re [2020] EWCA Civ 1070 (12 August 2020) is a recent decision on this point.

On 6th May 2020, 3 children were removed from their mother’s care. They were already the subject of interim care orders.

The local authority clearly had concerns about the mother’s ability to stay separate from the father and had asked the court to remove the children before, unsuccessfully. However at a one day hearing in May, hearing evidence only from the social worker, without the presence of the Guardian, who was unable to attend and the further difficulty that interpreters were required, the court ordered the children’s removal.

The mother’s barrister asked for the court order to be ‘stayed’ i.e. not put into effect until an urgent application could be made to appeal. The parents had repeatedly asked to be allowed to give evidence if the Judge was contemplating removal.

The application for a stay was refused and the children went to foster care that evening. The mother’s counsel had difficulty taking instructions due to lack of interpreter once the remote hearing had ended. Although application for permission to appeal was made on 11th May, it wasn’t accompanied by a request for a stay and there was no transcript of the judgment until 29th May. Permission to appeal was eventually granted on 29th June, the appeal was successful, and 3 months after they had been removed, the children returned to their mother.

The Court of Appeal decided a short stay should have been granted in this case:

I consider that the request for a short term stay should have been granted, particularly where the mother was at a disadvantage in instructing her lawyers. The reasons given by the judge fell short of justifying refusal. The nature of the risks involved in the children remaining at home for a further very short period can be measured by the fact that the court itself had sanctioned them remaining there between 27 April and 6 May for procedural reasons. Further, as the judge herself acknowledged, there was no real risk to the children being taken out of the country and, bearing in mind that the family had not disappeared in the previous six months when it could have done, the prospect of internal flight was hardly likely either.

What do I have to do if the Judge refuses my request for a short stay?

Hopefully it will be possible for the Judge to agree a short delay before any order takes effect in order to give you an opportunity to make an urgent appeal. If however the Judge refuses, you need to act quickly.

Any application for a longer stay i.e. while you are waiting for an actual decision on an application to appeal, is is determined by the principles set out in Hammond Suddart Solicitors v Agrichem International Holdings Ltd. [2001] EWCA Civ 2065.

I received the following advice via email after making such an application a few weeks before this judgment was delivered. You are encouraged to make your application in working hours but if you can’t call the security officers at the Royal Courts of Justice on 020 7947 6260, who will refer you on to the Duty Clerk.

Advice from the court received 14th August 2020


URGENT applications should be submitted to the court via email to this address: ci*********************@*********ov.uk between 9am and 4.15 pm

What may be deemed as urgent?

Cases where in the interests of justice a substantive decision is required within 7 days. The types of work listed below fall into this category
• Child cases ;
• Committal appeals;
• Applications for stay of removal;
• Evictions;
• Cases (including ancillary applications) with a hearing listed in the Court of Appeal within the next month;
• Applications for an urgent stay of execution;
• Covid-19 related cases e.g. medical guidance regarding priority patients;

NON URGENT applications should be emailed to: ci*******************@*********ov.uk

All appellant’s notices will be accepted in the first instance on the basis that they may be rejected at a later date for want of jurisdiction.

Fresh applications for permission to appeal must include:
• a completed appellant’s notice (form N161);
• grounds of appeal on a separate sheet;
• an undertaking to pay the appropriate court fee via your PBA account, a completed Help with Fees form (EX160) or by contacting the *RCJ Fees Office (see below); and
• a copy of the sealed order being appealed.
• A transcript of judgment should also be provided if available (or should be ordered immediately)

*Access to the Fees Office will be on an appointment only basis.
An appointment can be booked from the 1 June 2020 by calling the telephone number 0207 947 6527 each Monday, Wednesday and Friday between the hours of 10am to 2:00pm or by emailing the following address fe**********************@*********ov.uk . If you are unable to attend in person please contact the Fees Office by telephone or email and a member of the team will assist you.

The public counter at E307 (registry) remains closed and the drop box facility is no longer operating.

Once the appellant’s notice is issued, all queries should continue to be emailed to the following addresses:
Ci***************@*********ov.uk
Ci***************@*********ov.uk
Ci***************@*********ov.uk
Ci******************@*********ov.uk
Ci*********************@*********ov.uk

As our IT capacity for remote working increases we will look to provide a limited telephone service to our users.

The court will issue orders electronically for the time being.

Through a Glass Darkly – Transparency in the Family Courts

This is a post by Sarah Phillimore

EDIT 26th March 2021 The appeal failed. The Court of Appeal commenting at para 89 that the Judge had conducted the ultimate balancing test with meticulous care and demonstrated no error of law. Newman deserves credit for her tenacity and is no doubt very disappointed with this result – but the necessary debate about more openness in the family court system cannot proceed in isolation from the very real need to examine how many journalists operate and the harm they do. Privacy rights cannot simply be subsumed by Article 10 rights – they must be balanced and the Court of Appeal has affirmed this was properly done here.

This is a post about the case of Newman v Southampton City Council & Ors [2020] EWHC 2103 (Fam) (05 August 2020. The judgment is very long which is an indication that something important was happening.

Melanie Newman, a journalist wanted to see documents in care proceedings which had ended in October 2018.

The child, born in 2012, had been removed from her mother’s care in 2015 and in 2016 a court ordered that the child be adopted. The mother appealed and succeeded. This is a very rare thing for a parent to do. It cost her about £20,000 and the local authority was not ordered to pay any costs as their decision to apply for a placement order was ‘in line with all professional advice’

If the mother hadn’t appealed, it was likely the relationship with her child would have been severed, certainly throughout her childhood. The Court of Appeal said the matter should be reheard. More assessments were carried out; the local authority changed its plan to rehabilitation and the child went back to her mother.

Melanie Newman wanted to know what was driving an apparent trend for this area to have a unusually high percentage of cases which resulted in orders for adoption. She knew that her application to see the documents was not an application to publish anything about them – that would need a further application. She was interested to investigate how it could happen that a Judge could make an order that a little girl should be adopted, only to have that judgment overturned because of its ‘significant’ gaps and the slimness of the evidence.

The court described ‘the essence’ of Ms Newman’s application in this way at para 118 of the judgment:

The essence of the application is a request by Ms Newman for the court’s permission to immerse herself in the private detail of this family’s domestic affairs (for these purposes with M at its centre) in a search to uncover material which may assist in exposing to public debate at least one of the questions she has formulated through her counsel: did this local authority act lawfully in commencing care proceedings in respect of this child ? 

But she did not succeed in gaining access to anything other than a small selection of limited and redacted documents; permission to appeal was refused.

I discuss below why this happened and why I think it was the right decision.

The Law

Hopefully we are now all more familiar with the law in this area than we were a few years ago. The judge examines the framework from para 20 to para 72 of existing statutory restrictions on publication, the developing history of guidance about reporting and transparency, and how the court itself can ease or tighten restrictions using the inherent jurisdiction.

For a more general discussion of transparency and the applicable law, see this post.

The court relied on the case of Webster [2006] as a useful summary of the present law:

  • The starting point is that justice is administered in public
  • There is a risk of miscarriages of justice in family cases and the public need to be confident in the system
  • Freedom of speech, protected by Article 10 is a very important human right
  • The press play a vital role in ensuring the proper functioning of democracy
  • But if the court is dealing with children, that is an exception to the rule of open justice, because it involves private family matters that usually people want to keep private – however that could be different when the State is trying to remove children from their families
  • The court retains the right to relax OR increase existing statutory restrictions on disclosing or publishing information about family cases. This will require a ‘balancing exercise’ between all the different rights in play.

The court noted at para 49 that the move towards greater transparency was taken up by the current President of the Family Division in October 2019, when he published further guidance, flowing directly from the journey of this case when journalists launched a challenge to the decision of the Judge in 2018 to restrict what the journalists could comment on – even the previous Court of Appeal judgment that was already in the public domain!

Applications made to the court to see documents can clearly vary hugely in nature and extent. Here, the court considered the child who wished to know more about his own family history and the different sensitivities that might apply to medical evidence. But even that child was not entitled to ‘conduct an archaeological excavation through the entirety of the trial bundles’ as much of the material he wished to ‘mine’ relates to very personal and private aspects of the lives of other family members.

Factors towards maintaining confidentiality were set out in Re X (Disclosure of Information) [2001] 2 FLR 440.

  • The interests of the particular child
  • The interests of litigants generally who didn’t want their private business made public
  • public interest in encouraging frankness in children’s cases and securing co-operation from professionals who might be deterred from giving evidence if there was publicity
  • encouraging people who had hurt children to be honest about it

It’s clear these applications are not easy. The court noted the comments of Bodey J in Louise Tickle v The Council of the Borough of North Tyneside & Others [2015] EWHC 2991 (Fam).

However, what I will say is that this application demonstrates how time consuming and troublesome applications like this can be; not only for the media, but also for the court and for all parties. These are not easy applications. They require time, effort, research and expense on what is essentially a satellite issue. For these reasons it is important that if and when Local Authorities and the media (and/or the other parties) do come to realise there is an issue between them about how much should be reportable and on what terms, there should be sensible and responsible dialogue as soon as possible, with a view to finding an early modus vivendi. With the application of give-and-take, a measure of common- sense, and the engagement of the Children’s Guardian, it should be possible in most cases to come up with a formula based on decided authority which steers a path between (a) the need for greater transparency in the public interest, and (b) the need to respect the privacy and sensitivities of those whose lives are involved.”

What the parties wanted

Ms Newman wanted to see the court files to undertake an ‘independent journalistic assessment’ as to whether or not the public interest demanded a closer look at this case where a child was initially placed for adoption ‘on the slimmest of evidence’.

The local authority identified some documents it was willing to provide, but resisted wider disclosure. While recognising that Ms Newman was a respected journalist with a legitimate interest in this case, her request was ‘unprecedented’ and represented a significant intrusion into private rights. If granted, this request would set a dangerous precedent, and encourage other journalists to make similar requests. There was also a significant amount of material in the public domain; the Court of Appeal had already exposed the injustice done to the mother and child and fulfilled its proper function as a check and balance on a miscarriage of justice.

Further, the principle of open justice and freedom of speech had never been absolute – both were subject to ‘material and legitimate’ inroads.

Lord Mance put it this way in Kennedy v Charity Commission (Secretary of State for Justice and others intervening) [2014] UKSC 20, [2015] AC 455. 

Information is the key to sound decision-making, to accountability and development; it underpins democracy and assists in combatting poverty, oppression, corruption, prejudice and inefficiency. Administrators, judges, arbitrators, and persons conducting inquiries and investigations depend on it; likewise the press, NGOs and individuals concerned to report on issues of public interest. Unwillingness to disclose information may arise through habits of secrecy or reasons of self-protection. But information can be genuinely private, confidential or sensitive, and these interests merit respect in their own right and, in the case of those who depend on information to fulfil their functions, because this may not otherwise be forthcoming….

Those representing the child argued that disclosure was not in her best interests. They made the valid point (see para 102) that it is artificial to see Ms Newman’s request as simply to access the documents. She wanted to see the documents because she wanted to write about them and publish what she writes. The application for disclosure cannot be seen in isolation from the obvious wish driving the request for disclosure.

The court therefore considered that although Ms Newman is a serious journalist with a serious purpose, that does not provide a starting point of access to documents, but it does engage the necessary ‘balancing exercise’ to determine which rights will prevail.

The court permitted Ms Newman to see limited aspects of the court file, commenting at para 162

This is a targeted and fact-specific exercise which has involved a careful balancing exercise of all the competing rights involved as between the individual parties to this particular case. I have rejected Ms Newman’s application for wholesale disclosure of the court file but I have agreed that she should be entitled to see limited aspects of the material it contains. To the extent that I have interfered with either the mother’s or M’s Article 8 rights and/or Ms Newman’s Article 10 rights, I have done so in what I judge to be an entirely proportionate manner. An important factor in my decision has been the mother’s consent to disclosure but this does not mean that in every case where an aggrieved parent supports media access to material generated in children’s proceedings, journalists should be encouraged to make applications.

The court found that different considerations applied in respect of different broad categories of evidence – medical and health records, foster care and contact records, police disclosure, previous records, minutes of child protection conferences and experts reports.

With regard to medical evidence, the court said this at para 136:

In considering where the balance lies, it seems to me that the overarching factor which I have to weigh in the balance is whether it is in M’s overall best interests to release to a journalist the most intimate details of her own and her mother’s medical records even if the dissemination goes no further than that. Such a step would represent a clear court-directed intrusion of this child’s most basic and fundamental rights to a private family life. If those rights are to be the subject of court-sanctioned interference, there has to be a proper justification. I appreciate that Ms Newman cannot justify that interference on any specific basis because she has not yet seen the medical and other records. She wants to read them in order to see what they contain. Having reflected carefully, and because of the intimately personal and sensitive nature of this material, I do not consider the mother’s consent to its release on her own or M’s behalf to be sufficient to displace the overwhelming need to ensure that such information remains confidential from public scrutiny and I would include Ms Newman within this embargo. In the context of this application, I am satisfied that she has sufficient material about the medical history of both M and her mother. It is either already in the public domain and recorded in the judgments to which I have referred or it is likely on the balance of probabilities to be irrelevant to any decisions which were made in those proceedings. To the extent that those judgments have not recorded the full detail of the medical evidence available in the bundles, I am satisfied that such confidence will have been preserved for a very good reason.

However, a different approach was justified in terms of reports and assessments that relate to the mother herself where the balance fell in favour of allowing Ms Newman to see them, redacted where necessary to preserve the rights of third parties.

Happily, all agreed that Ms Newman should not have to pay towards the considerable costs of the substantive application. But the local authority sought £1,200 to pay for the costs of redaction and copying. Ms Newman agreed to pay for the costs of copying. The court noted that Ms Newman’s legal team had acted pro bono and that Ms Newman did not have the backing of a large media organisation. Therefore the court ordered Ms Newman only to pay limited costs towards copying documents.

Her permission to appeal was refused.

Conclusion

The key point I think was this: it is not for journalists to establish the lawfulness of court decisions. Their important role is to hold up to public scrutiny the reasons for the rules that bind us together in a democratic society. In this case the Court of Appeal had already set out and scrutinised the failings in this case and put right the injustice done. There was no criticism of the local authority for bringing care proceedings and its subsequent actions were not seen as sufficiently unreasonable to attract sanction in costs.

I can on many levels understand the frustration of the journalists. It is difficult to read – at para 103 – the child’s barrister placing reliance on ‘research’ about what children think about publicity, that is based on such tiny numbers of self selecting interviewees. – see ‘Safeguarding Privacy and Respect for Children and Young People” [2014].

It was also interesting to see discussion of a key point that is often overlooked. Who is going to pay for the practicalities of disclosure? In this case the court decided that it was proportionate to ask the local authority to redact the documents. That may not always be the case.

I think that there is certainly a case for more and better research about the impact on children of publicity of such cases.

However, the judgment here is very careful and detailed and in my view provides compelling reasons for why the right of any journalist to access court documents must be carefully and cautiously analysed.

The court commented at para 163:

The principle of transparency and openness is of crucial importance in a democratic society. There have been significant developments towards greater transparency in the Family Courts but any wholesale departure from the principled and well-recognised protection afforded to the interests of children is one which will need to be informed by a careful evidence-based review. Just such a process is ongoing at the present time. As advertised in his 2019 View from the President’s Chambers to which I have referred in paragraph 72, Sir Andrew McFarlane, as President of the Family Division, has assembled a panel who will assist him in the important task of considering whether the line which is currently drawn between, one the one hand, the need for confidentiality for the parties and children whose personal information is the subject of proceedings, and, on the other, the need for the public to have confidence in the work done in these courts on behalf of the State and society is the right one. The consultation process is ongoing as I conclude this judgment.

It is certainly true that journalists play a vital role in shining a light on the failures and excesses of the State. I agree that a system that works in ‘secrecy’ risks bad practice becoming the norm and unchallenged. But I also note that for every Carl Bernstein we have an Andrew Norfolk. There is a risk for all of us who feel passionately about the subjects that interest us; we risk our objectivity and we risk causing harm to others in pursuit of a single minded goal and focus.

My views about the need for more openness and transparency in the family courts have undergone significant evolution over the past six years and I find myself more firmly over the line of ‘less’ rather than ‘more’ – sadly because I have lost faith in journalists to report with impartiality and integrity.

But it is necessary that we never stop thinking about this. I applaud Ms Newman’s tenacity and bravery in making this application; it must have been stressful and difficult. But I think the court made the right call here.

I will be interested to see where further consultation and guidance takes us.

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

Final Report of the Ministry of Justice 2020

In May 2019 a ‘3 month inquiry’ into issues of domestic abuse and applications to court about children, was announced by the Ministry of Justice. I expressed considerable scepticism at the time, not least scoffing about the wholly unrealistic timescales proposed.


In that at least I can see I was correct. The final report was published at the end of June 2020 so a 13 month process. Even that seems astonishingly quick to me. It is without doubt an impressive piece of work, covering a great deal of important and necessary conversations about the family justice system. All practitioners need to read it, digest it and think about it carefully .

I will not pretend that I am about to unpick it line by line. But I thought it might be interesting or helpful to share my immediate concerns.

In May 2019 I said this about the real problems facing the family court system:

Family courts are not the arenas for frightened or angry people. An adversarial court system that requires proof is a hard place to be for those who believe themselves to be or who actually are victims of violence.
I quite accept that most of us entering into a relationship do not at the outset start gathering evidence of our partner’s appalling behaviour. One of the real evils of coercively controlling relationships is the very long time it can take to work out what is going on and to gather the resources and courage to leave.
There appears to be widespread public ignorance about how the forensic process operates and how you prove an allegation in court. That is not anyone’s ‘fault’ but it is a great shame more people are not prepared to accept their lack of understanding before diving into the debate.
But the elephant in the room is the removal of resources. Social workers and Cafcass need time and space to conduct investigations, to thoughtfully reflect, and to build relationships with parents. Courts dealing with private law disputes need to offer judicial continuity and swift fact-finding hearings – which currently doesn’t happen because we don’t have enough judges or courts.
The removal of legal aid from private law family cases has led to a huge rise in the number of litigants in person, with obvious and serious problems for how cases are managed. This removal was endorsed by Parliament in 2012 with the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012.
Research by Citizens Advice in 2015 stated what we all know to be true: “Restricted access to legal aid is one of the biggest barriers to support for victims of domestic abuse in England. In their work helping victims of domestic abuse, only 12% of advisers reported being unaffected by the changes that came into force from April 2013.


The aim of the report is to provide an understanding of how effectively the family courts identify and respond to allegations of domestic abuse and other serious offences, in cases involving disputes between parents about the arrangements for their children. These are known as ‘private law children proceedings’ because they are a dispute between private individuals and not any agency of the State.

The report sets out its summary and recommendations. The expert panel received ‘over 1,200 responses’ from individuals and organisations and held roundtables. The evidence focused on domestic abuse.

The report noted key themes

  • Resource constraints; resources available have been inadequate to keep up with increasing demand in private law children proceedings, and more parties are coming to court unrepresented.
  • The pro-contact culture; respondents felt that courts placed undue priority on ensuring contact with the non-resident parent, which resulted in systemic minimisation of allegations of domestic abuse.
  • Working in silos; submissions highlighted differences in approaches and culture between criminal justice, child protection (public law) and private law children proceedings, and lack of communication and coordination between family courts and other courts and agencies working with families, which led to contradictory decisions and confusion.
  • An adversarial system; with parents placed in opposition on what is often not a level playing field in cases involving domestic abuse, child sexual abuse and self- representation, with little or no involvement of the child.

I agree with much of this. But there are some things summarised there and discussed in greater detail in the body of the report which I find frankly surprising in any document co-produced with a number of senior laywers.

Pro contact culture and other curious statements

The Panel say this about pro-contact culture

Previous literature has identified the ‘pro-contact culture’ of the family courts and we have adopted this terminology as appropriate to capture the systemic and deep-seated nature of the courts’ commitment to maintaining contact between children and non-resident parents. A ‘culture’ describes the particular set of beliefs and behaviours (sometimes unconscious or taken-for-granted) of a group of people. Most institutions develop a distinctive culture over time, and the family courts are no exception. This does not mean that all members of the institution necessarily agree with or conform to all aspects of the culture. But it does mean that there is a strong pressure to conform, and that cultural change does not happen easily. ‘

The pro-contact culture’ is not some whimsy or consequence of submission to the patriarchy. It is the law. It has long been the law. It is enforced in various decisions of the European Court. I do not understand why the law is reframed here in clearly pejorative terms as a ‘culture’ .

Children have a right to a relationship with both parents, so long as they are safe. I agree however, that a system starved on resources and which operates on an adversarial platform may end up giving a crude prominence to the presumption that contact is in a child’s best interest.

I also reject and am astonished to see this comment about liaison with the criminal justice system:

Silo working can result in evidence of abuse accepted in one system, for example the criminal courts, not being acknowledged or effectively engaged with in the family court.

Police disclosure and findings of the criminal courts are vital pieces of evidence and never overlooked in any case where I am instructed. Of course, getting the information from the police quickly is another matter. Again an area where lack of resources make it very difficult for the family court system to do its job.

The Panel comments:

Many respondents reported that regardless of the particular circumstances, even where the most serious allegations of domestic abuse were raised, courts expected that parents would work together to facilitate contact arrangements.

Raising an allegation is not the same as proving it. Where serious allegations are made the court needs to determine them by way of a finding of fact. I accept, and this has been known for some time, that early findings of fact are often essential. An assertion of something another does not accept and which has not already been proved, is not a fact and never can be ‘a fact’.

We can ‘raise’ whatever allegations we like. To ask allegations to impact on the proceeses of a legal system they have to be proven. I am very surprised and uneasy to read a phrase like this in a document produced by the Ministry of Justice.

The value of self selective lived experience.

This is without doubt my key concern. I am worried that what I feared has come to pass. There was no scrutiny of the reliability of the accounts given to the Panel and yet such indivudal accounts represented the vast majority of responses to it. 87% of responses ‘in scope’ were from individuals with personal experience of private law children proceedings – mainly mothers and their families.

The report makes it clear the Panel ‘were unable to review individual case files’. But reliance on evidence from an entirely self selecting group apparently causes little concern as this was ‘supplemented with a literature review and a review of relevant case law.’ So I am not quite sure what the Panel mean when they later say ‘In practice, the large number of responses meant that the panel needed an extra six months to ensure that the evidence could be thoroughly analysed and reviewed’.

What exactly were they reviewing? Seeing case law and ‘literature’ through the lens of ‘lived experience’ that you accept as true without investigation sounds to me suspiciously like the seeds of a self fulfilling prophecy.

It is clear the responses from the lawyers were different to the responses from the mothers:

Submissions from legal professionals described their experience in cases involving abuse which varied in persistence and severity, whereas most mothers described relatively severe and sustained abuse, almost invariably involving coercive control.

No question appears to be raised as to why the lawyers saw things so differently. I think it is very important to robustly test assertions which are so serious. Such as this –


Respondents felt that orders made by the court had enabled the continued control of children and adult victims of domestic abuse by alleged abusers, as well as the continued abuse of victims and children. Many submissions detailed the long-term impacts of this abuse manifesting in physical, emotional, psychological, financial and educational harm and harm to children’s current and future relationships.
Many respondents felt that the level of abuse they and their children experienced worsened following proceedings in the family court. There were concerns that efforts to report continuing abuse were treated dismissively by criminal justice and child welfare agencies because of the family court orders. Many respondents also highlighted the negative impacts felt by children who were compelled to have contact with abusive parents, and the burden placed on mothers and children to comply with contact orders compared to minimal expectations on perpetrators of abuse to change their behaviour.

Again, there seems to be no attempt to clarify the nature and status of the alleged victims and perpetrators. Were the ‘perpetrators’ referred to here FOUND TO BE SO in either a criminal or civil court? Or are we back in territory of allegations being raised? I have never known a case where a person found to have perpetrated serious abuse was simply left to get on with it and unsupervised contact ordered.

But I have experienced many cases where fathers never had direct contact with their children again after allegations raised about their behaviour by the children’s rmothers.

The Panel does recognise the limitations of its approach, but concludes that it doesn’t impact their ability to make robust recommednations

Nor can we tell how representative the submissions are of all court users and professionals. As with all inquiries, the individual and organisational submissions and engagement in the data gathering process were voluntary. There is therefore likely to be some selection bias. Individuals who are largely satisfied with the process and outcomes in the family courts may have less incentive to provide evidence. Similarly, professionals who work in the system may have more incentive to defend how the system operates.
Nor can we test the accuracy and completeness of the accounts given. It is not possible to have an ‘objective’ account of what occurred in each case. Qualitative evidence presents the perceptions and views of individuals and organisations that respond. These views will be influenced by the attitudes, cultural context, organisational culture, specific role in the proceedings and individual biases of those providing evidence. They can also be subject to recall bias. The panel was well aware that submissions can be based on misunderstandings, misapprehensions or deliberate distortion as well as wishful thinking.
Despite these inherent limitations, we are persuaded that the evidence gathered does identify systemic problems with how family courts deal with domestic abuse cases and cases raising other risks of harm in private law children cases. It is unlikely that the panel has managed to uncover only isolated mistakes or rare events. The evidence does point to issues affecting multiple cases across the system and with potentially serious effects, although we were also able to identify instances of good practice.


I think this is powerfully naïve. I am particularly concerned by this comment:


…majority with detailed descriptions that appeared to provide authentic accounts of individual experiences.

‘Appeared to provide’ just isn’t good enough when it is used to scaffold the following comments. This has never been my experience in any private law case over 20 years.

Many respondents argued that in ordering direct contact in the majority of cases, the court ignores, dismisses and systematically minimises allegations of domestic abuse and simply treats the case as if domestic abuse was of no continuing relevance. Too often, even where findings of domestic abuse are made, the submissions suggest that victims are told to ‘move on’ and to progress contact, even though the perpetrator has shown no or minimal effort to accept or engage with the findings made against them. Thus, the victim is left with the responsibility of ensuring that contact takes place, including liaison with the abuser, and sometimes against the expressed wishes of the child.

We can see how this is being interpreted beyond the Ministry of Justice and how the Panel’s willingness to accept the unverified accounts of Respondents may now play out.

“The Court Said” has already launched a petition. This is an organisation supported by a number of women with ‘personal’ experiences of the family court system. Two of these women are Samantha Baldwin and Victoria Haigh, both subject to serious findings in the family court about the harm they inflicted on their children and both enthusiastic self identified victims of the family court.

A self identifying ‘journalist’ Richard Carvath who also supports the Court Said has just been convicted of harassment due to his campaigning against the family courts which he believes is justified because of the ‘detailed’ accounts given to him of injustice.


It is or should be abundantly clear that ‘personal’ experiences do not provide the whole story. And that those with axes to grind need to be treated with polite scepticism.

If the accounts of the Respondents to the Panel are simply accepted, its clear what The Court Said wants to happen now. I quote from the petition.

The government needs to launch an immediate case review and a mechanism for recourse for victims affected by the crisis. Thousands of children have been removed unlawfully from victims of Domestic Abuse with no prospect of reversing the situation. Many more thousands are living in fear with unsafe Court decisions impacting families dealing with a Domestic Abuser. Without recourse, this will continue.
The report publishes the harms endured by survivor families in the Family Court system. It is time to right the wrongs and provide compensation for victims, whose lives, families and futures have been forever marked, or even destroyed by an unsafe decision in the Family Court.
We call upon the government urgently to immediately review all cases that have gone before the proposed reforms, and the ones that will suffer during the transition to reform. We call upon the government to reverse decisions where possible and provide compensation to those affected by the crisis. #thecourtsaid

Conclusion

The Panel Report sets out a lengthy list of recommendations and hopes, some of which sound sensible, some a little more optimistic – the Panel should probably have considered a little more carefully the impact of the ECHR on their recommendation to end a presumption of parental involvement for e.g.

But no one could argue in good faith with efforts to make sure that the wishes and feelings of children are properly heard and they are not put under pressure by either parent to toe any particular line.

But I am afraid I cannot read something like this without a hollow laugh

The panel hopes that its recommendations will empower judges, lawyers, Cafcass, Cafcass Cymru and other family justice professionals to work to their best potential in private law children’s proceedings, and above all, that its recommendations will benefit children and parents experiencing domestic abuse.

If parents in the system don’t have lawyers, if there is no where in the court bulding to sit and talk, let alone wait in safety, if CAFCASS don’t get the time and resources they need to do their job properly, if anyone’s account is simply accepted without challenge, all of this is meaningless.

Resources are rightly identified in this report as a major stumbling block to any effective change and I agree wholeheartedly with this

The panel believes that the shortage of resource affects the whole system, but is most concerning for domestic abuse cases, which are likely to be more resource-intensive to address than non-abuse cases. Safeguarding requires time and resources to do a detailed and careful risk-assessment; the need for special measures requires adequate court facilities; fact-finding hearings require additional judicial time; and additional interventions may be required to make any child arrangements safe. This all costs money. The scarcity of resources mean that the system finds it difficult to address the additional demands presented by domestic abuse cases:

So what will be done about that?

Nothing. No doubt any spare cash in the system will now go to setting up further serious case reviews as is urged by ‘The Court Said’. This seems to be how we roll now as a nation.

I hope I am wrong. But I doubt I am. Let’s meet in a year’s time and see what came to pass.

EDIT July 4th 2020. The Government’s plans to implement its reforms are set out here. Their plan seems to involve yet another pilot scheme.

I do hate being right all the time.

Further reading

CAFCASS tool for assessing domestic abuse

The Empathy Gap 14th June 2020 – Commentary on Adrienne Barnett in “A genealogy of hostility: parental alienation in England and Wales”, Journal of Social Welfare and Family Law (Jan 2020). The paper discusses the role of parental alienation within the English and Welsh family courts.

The Empathy Gap 11th June 2020 – Commentary on “U.S. child custody outcomes in cases involving parental alienation and abuse allegations: what do the data show?”, By Joan S. Meier, Journal of Social Welfare and Family Law 42:1, 92-105 (2020)

Ministry of Justice response to the Harm Report re extension of legal aid May 2023

Women’s Aid response to the Harm Report progress May 2023

Ministry of Justice implementation report May 2023