Author Archives: Sarah Phillimore

The Big Question – does the new law on Domestic Abuse go far enough?

This is a post by Sarah Phillimore

“Thomas More: …And when the last law was down, and the Devil turned around on you–where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast–man’s laws, not God’s–and if you cut them down…d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.” 
― Robert Bolt, A Man for All Seasons

On Sunday March 15th 2020 I was happy to accept an invitation to appear on the BBC’s ‘Big Questions’ programme to discuss the new Domestic Abuse Bill.

The other contributors were Michael Lewkowicz of Families need Fathers, Maria Cripps who runs a perpetrator programme in Brighton, Katy Bourne the Sussex Police and Crime Commissioner, Laura Richards founder of Paladin (the National Stalking Advocacy Service), Jo Gough the CEO of RISE UK and Luke Gittos of Spiked online.

I tried to set out my thoughts via Twitter on the train on the way down

It was an interesting experience but the half an hour we got was no where near long enough to do more than lightly touch on some issues of considerable importance. However, I learned one thing above all which made a lot of things very clear to me for the first time – and that was the extent to which people either do not understand the distinction between the criminal justice system and the family justice system, or (perhaps more alarmingly) do not think it is important.

It was certainly naive of me not to have picked up on this before; as so many of us do I make the mistake of assuming that things which are clear and simple to me, are equally clear and simple to everyone else.

Much of the conversation was dominated by crimes; men who had committed them, how to identify them, how to ensure they did not get further access to their victims via any court system. With that, I entirely agree. Any person who has been convicted of a serious offence of violence against an intimate partner or child should have NO direct access to either without a very robust risk assessment and clear evidence of positive change. It is obviously wrong and harmful to allow such a person to directly cross examine their victim in any court setting. I am glad to see the Domestic Abuse Bill proposes to prohibit this but allow payment from court funds for an advocate to cross examine in those cases where the interests of justice demand it.

I do worry however how that will play out in practice and how long it will take to get the funds and find the advocate. My experiences in trying to find intermediaries do not fill me with optimism that this will be a quick or straightforward process. Nor am I aware from what pool of people these ‘cross examination advocates’ will be drawn nor any rate of pay. To cross examine effectively they will have to prepare thoroughly. Its not a matter of just turning up on the day and reading out a list of questions. Cross examination is a dynamic process where you must be ready to respond to answers you maybe did not expect.

However, this focus on criminal convictions and police intelligence, detracts from what I suspect are the majority of arguments in the civil family court about who spends time with children after a relationship breaks down. Typical of the cases in which I am instructed are a period of reasonably successful co-parenting after the separation, but then contact breaks down and allegations are made. Often each parent makes allegations against the other. Often neither parent has any kind of criminal record or concerns raised with any other agency.

During the debate the statistic that ‘only 1% of father’s are refused contact’ was raised. I don’t know where that comes from. Its not true, so far as I know. I can only assume that someone has bundled up direct AND indirect contact (which can be as little as two cards a year) and called it ‘contact’ – which of course is pretty dishonest. If anyone knows the source of this oft quote statistic, please do let me know. On my own cases I would say a lot more than 1% of fathers end up with no direct contact and no prospect of any direct contact either. And some of these fathers are identified by the court as ‘blameless’.

That this statistic has gained the traction it has – I hear it in many different places – underscores to me how the narrative of (female) ‘victim’ versus (male) ‘perpetrator’ is well established. This has the potential to do real and serious harm. It is fundamental to the rules of natural justice that people are able to challenge allegations made against them, if they do not accept them and if there is no evidence to support them such as a criminal conviction – which cannot be denied. An assumption at the outset that a women is a ‘victim’ has potential to cause great unfairness.

As I said in answer to a question by Nicky Campbell – the main problem with the civil family justice system is structural. What we need are quick and efficient fact finding hearings, judicial continuity and court buildings that can provide separate waiting rooms and other special measures such as screens and video links. What would be great also to have are safe, accessible contact centres so that when allegations are made against a parent, there is another route than simply stopping contact altogether while the court case winds its way though the system. I would like to see a strict time limit of 26 weeks as we have in public law cases and clear willingness to transfer the primary residence of children where possible, once it is clear that the primary carer does not accept a finding of fact and continues to obstruct contact.

It was sad but not surprising to see that I was instantly misquoted on social media, called ‘vile’ and a ‘disgrace’ for speaking nothing more than the obvious truth. If people genuinely think that pushing a false narrative and shouting down anyone who disagrees with them is a sensible long term strategy, I have some bad news for them. My only worry however is that these single issue campaigning groups appear to have captured a significant portion of the law and policy makers. And that IS a problem. Particularly when in their ranks are a number of women who have already been found by the family courts to have caused significant harm to the children in their care.

Hopefully we can keep talking and seeds can be planted. I have to continue to hope that we all want the same thing – for children to grow up healthy and happy with a relationship with both parents if that is safe for them. But nothing good ever came of denying the truth or bending the law to fit just one narrative. The problem with this debate was encapsulated by its title. Of course the law ‘doesn’t go far enough’. It cannot. Because what many campaigners seem to want is something that goes entirely beyond the law – a system whereby allegations (made by women) are simply believed without challenge. And that cannot be right. And I will continue to speak up against it.

Further reading

Alleged perpetrators of abuse as litigants in person in private family law – research from the MOJ from 2017 which explains why we are now in the current mess after legal aid was withdrawn from such cases in 2015.

Domestic Abuse Bill 2020: Over-arching fact sheet

Cross examination in the family court fact sheet

Safe not Sorry – Woman’s Aid report from 2016 which relies upon the bogus ‘1% contact refused’ statistic.

Westminster Legal Policy Forum keynote seminar: Next steps for family law in England and Wales


Next steps for family law in England and Wales – reforming care proceedings, protecting vulnerable users and modernising court procedures

Sarah Phillimore, Barrister, St John’s Chambers
Published on 26th February 2020

11.25 – 12.05 Reforming care proceedings in England and Wales – Special Guardianship Orders, improving standards nationwide and innovative approaches to care

I was very pleased to be asked to speak today, but rather less happy about what I was going to use my five minutes to say. There is clearly information and concern enough about the current operation of the child protection system to fill five days.

So I thought it probably most helpful to set out my general concerns. Because, while all of these articulated identified issues and concerns are important, my worry is that without clarity regarding the underlying narrative of what drives state intervention with families, then much time and energy may be expended on reforms and alternations which do not have the intended consequences.

I will first explain my background and what I say gives me authority to comment in the way I do. I began to specialise in care proceedings around 1999. From 2011, I became increasingly concerned about the poor quality of public debate around these issues; sadly some of it generated by serving members of Parliament. This reached an apex for me in late 2013 with the case of the Italian national Alessandra Pacchieri who was subject to a ‘forced Caesarean’ after suffering a mental health breakdown on a visit to the UK – her child was later adopted. This generated a great deal of media commentary, some more accurate and responsible than others. However, it was clear that the ‘system’ did not cover itself in glory in the handling of this case and the visceral and terrified reactions of a fairly large sector of the public could not simply be ignored.

That prompted me to take more direct action; I set up my website Child Protection Resource Online and I organised over the years 3 multi disciplinary conferences where the aim was to bring together parents and professionals to discuss how the system was – or wasn’t – working.

Therefore for the past six years I have actively attempted to engage in dialogue with a great deal of people who have very varying perspectives on what the child protection system is FOR.

And the key difficulty appears to have emerged, in my view, that we have competing narratives that exist in tension with one another. I will deal with this fairly crudely given time constraints

The first narrative – and this is the one supported by successive governments – is that children are to be ‘rescued’ from neglectful homes, and placed for adoption in ‘warm loving homes’ with parents who will advocate for their children and support them, requiring less state intervention.

The other is that England and Wales are clearly outliers when compared to all other European countries in our willingness to make orders that permanently sever a child’s connection to his birth family. And that insufficient respect – or none at all – is paid to the rights of parents to be supported to care for their children. I see this particularly in cases involving parents with learning disabilities who, unless they have the benefit of supportive families are often simply unable to care for their children.

The narrative you embrace clearly has consequences for the direction of travel of care proceedings.

The example of Special Guardianship Orders is helpful and illustrative. The 26 week timetable together with various judicial warnings about the seriousness of a placement order has, without doubt, lead to SGOs being made on the basis of hope and crossed fingers. It is my view that a Supervision Order should never be attached to a SGO – this is supposed to be an order of permanence where the holder has ‘super PR’. It is simply illogical to suggest that it must be accompanied by a SO ‘to keep an eye on things’. If a SO is required, it suggests to me that the SGO should not be made.

This is in my view a direct consequence of the competing narratives. If we are fully committed to the ‘rescue narrative’ than frankly 26 weeks is far too long for most care proceedings, and as was envisaged by the original framers of the Children Act ,care proceedings could sensibly conclude in a matter of weeks. If however we espouse the need to provide families with more intervention and support then 26 weeks is no where near long enough.

How do we resolve this tension? I do not know. And happily I am not tasked with the very weighty responsibilities that fall upon law and policy makers in this room. But we will certainly not resolve anything if we can’t acknowledge it.

I would like to see greater awareness and discussion of what could be put in place to make care proceedings fairer, more accessible and less brutal for parents. Only this week I was pleased to read about the new assessment centre at Trevi House in Plymouth – if you don’t know about the work of Trevi House then I suggest you find out more. On Tuesday I attended a conference in Birmingham which discussed the success of parent advocacy programmes in the United States and what work was beginning to be done here with regard to use of such programmes and greater involvement of families by way of Family Group Conferences.

So I hope this provides some food for thought and a possible basis for further discussions.

Lived experience is great. But law and policy have to be based on facts. I hope I am wrong about my criticisms of the Family Justice ‘three’ month review and the way in which it has gone about gathering ‘evidence’.

Time, as ever, will tell.

Sarah Phillimore
26th February 2020

Competence and Collaboration in Care Proceedings

This is a post by Sarah Phillimore

I was struck in a recent case to read a very simple and powerful exposition by a psychologist of the ‘competence promoting approach’ when assessing parents, as opposed to the ‘competence inhibiting’ approach (Tucker & Johnson, 1989). I hope this psychologist will forgive me if I borrow entirely their summary of what this approach involves – I can’t name them in case that leads to jigsaw identification of the family involved.

To promote competence, the parent is enabled to be in control. Skills are developed on the basis of pre-existing strengths, rather than focusing on weakness. Parents are treated as equal partners when decisions are made about their children.

The ‘competence promoting approach’ has the following characteristics:
• Do not assume that all the problems are caused by parental mental health difficulties.
• Acknowledge environmental factors and parental coping skills.
• Do not assume a lack of nurturing skills or a limited capacity to learn new skills.
• Do not make comparative judgements about the adequacy of home-making and parenting that are informed by culturally inappropriate comparisons with norms for socially advantaged people.
• Recognise the emotional bonds between the parents and their children.
• Value the parents as people by ensuring that professional staff keep appointments, and deliver what they say they will deliver on time. This enhances rather than diminishes parental self-esteem.
• Do not manipulate parental fears about losing their child to ensure compliance.
• Do not provide a level of day to day surveillance that undermines the parents’ independence and reinforces the parents’ sense of inadequacy.
• Involve parents fully in all decisions.
• Provide intensive support at crisis points.
• Ensure that necessary and long term practical support is offered and maintained.
• Provide education and training opportunities that lead to self-reliance.
• Undertake a comprehensive check of state benefits available to the family.

I don’t think I had ever before seen this approach laid out so clearly and it was striking how difficult it was to think of cases where I could be confident that this was indeed the approach adopted by professionals in care proceedings.

I was therefore really pleased only a few days later to hear that Trevi House have now opened Daffodil House, a residential family centre based in Plymouth, Devon. Trevi House is almost unique in the UK, providing rehabilitation and parental assessment for mothers with drug or alcohol dependency issues, together with their children.

It looks like Daffodil House will be an excellent addition to what Trevi House can offer. It aims to offer a strength-based parenting assessment, to support parenst to identify what changes they need to make in order to keep their child safe. The focus is on the safety and welfare of the child, while using a psychologically informed approach in order to address often complex and longstanding problems that have had a negative impact on safe parenting.

Daffodil House adheres to the five core values of trauma informed services (Fallot & Harris, 2006). The aim is thus to provide a safe and nurturing environment for families so that the assessment is fair – whatever the outcome of the assessment, the family will have an experience of ‘transparent working’ and collaboration.

Daffodil House sets out its objectives as follows:

• To ensure that each child is protected and safe
• To put the needs and voice of the child at the heart of the assessment and care planning process
• To deliver assessments that are holistic, comprehensive, robust and timely
• To provide meaningful guidance and direction regarding the parenting capacity of parents
• To assist with decision making regarding the longer-term placement of the child
• To use effective and respected assessment tools
• To work in partnership with parents, building a relationship of trust and developing self-efficacy
• To work in effective partnership with all professionals involved in the family
• To provide a trauma responsive service that works with families using the trauma lens

I am aware of the dangers of being naive; how being ‘cheer leaders’ for parents may risk children suffering more harm for longer. But I am worried that what I usually see in care proceedings is a traumatic and brutal process that simply chews parents up and spits them out. The vast majority of parents love their children and want the best for them – but many simply just do not have the skills to make that desire a reality, due to their own longstanding traumatic experiences.

Therefore it is sad to note that Daffodil House is able to accommodate only ‘up to 5 families’. I know the old parable of the child throwing stranded star fish back into the sea – it made a difference to that star fish! But this a drop in the ocean. If we really value the most vulnerable members of our society, then this kind of provision ought to be the nationwide norm. How many of us who work in this field can say with confidence that the families that we deal with in care proceedings are approached from the basis of ‘confidence building’ as opposed to ‘confidence inhibiting’? And what do we think happens to the parents that the system leaves behind?

Please go to http://trevihouse.org/for-professionals/daffodil-assessment-centre-1 for more info or to make a referral.

Safeguarding in Schools around issues of Transition

EDIT September 2020

New Guidance has now been issued by the Department of Education; see this article for explanation.

The Safe Schools Alliance issued a press release on Wednesday 5th February 2020 to provide an update regarding the judicial review of Oxfordshire County Council’s support of the lawfulness of the Trans Inclusion Toolkit.

This was introduced with the objective of seeking to tackle and reduce LGBT bullying and ensure LGBT inclusion in schools. However, it purports to advise schools and others as to the law contained in the Equality Act 2010. Therefore it needs to get the law right.

The objectives of the Toolkit are clearly important and necessary. No child should face bullying or harassment at school or anywhere and certainly not any discriminatory treatment which relates to one of the protected characteristics in the Equality Act.

The problem arises however that there appear to be significant aspects of the Toolkit which are unlawful; in particular the guidance given concerning single sex toilets, single sex changing rooms, single sex sleeping arrangements and single sex sports.

Most tellingly, the Toolkit continually misrepresents the relevant protected characteristic of the Equality Act – ‘gender re-assignment’ – as some kind of nebulous ‘gender identity’ or ‘being trans’. Neither of these are protected characteristics.

Members of the SSAUK tried to raise and discuss their concerns about this from late 2018 – but this resulted only in the re-issue of the guidance in September 2019, that dealt with none of the concerns. Therefore an action in judicial review has become the only remedy – which is pretty dispiriting.

I have written previously about why I think this guidance, along with many others in a similar vein, risks being an unlawful diminishment of both child safeguarding and parental responsibility.

This legal challenge is one of many similar challenges to the apparently nationwide imposition of a the new orthodoxy that it is possible to change your biological sex and it that it should require nothing other than the assertion of the person who wishes to ‘change’ it.

As a disabled person who has a keen appreciation of the limits to ‘self identification’, I have written here about why I reject the assertion that biological sex can change, and written here about why I am very concerned about the implications of any such orthodoxy on the safety of women and girls.

The main objections to the guidance were summarised by Tanya Carter, a spokeswoman for SSA UK. She argues that it fails to take into account all the protected characteristics of the Equality Act 2010 and is in direct opposition to all safeguarding protocols which separate children over age of 8 and segregate by sex for reasons of safety.

In particular, it will result in schools and other educational settings being compelled to allow male pupils to share confined spaces with female pupils – without parents knowledge or permission – and allows males to take part in sports alongside females.

Tanya Carter said:

“We are concerned at the impact this guidance could have on all children, but particularly on the ability of lesbian, gay and bisexual teenagers to understand and embrace their sexual orientation. In addition, the guidance does not effectively safeguard the trans-identified students it purports to help. The misrepresentation of article 16 of the United Nations Rights of the Child removes trans-identified children from the protective processes of schools and parents working together in the child’s best interests.”

The claimant in this action is now a 13-year-old Oxfordshire girl whose identity is not revealed given her young age. Her reaction as set out in the press release is powerful:

The toolkit has a very significant impact on me as a girl. I am very surprised that the council never asked the opinion of girls in Oxfordshire about what we thought before they published the toolkit. Under these guidelines I have no right to privacy from the opposite sex in changing rooms, loos or on residential trips. Sports could end up being unsafe as I am a really small teenage girl and boys are bigger than girls. This guidance could be used in any educational establishment in Oxfordshire, which possible includes sports clubs.”

“The guidance makes me feel that my desire for privacy, dignity, safety and respect is wrong. It makes me feel sad, powerless and confused. I recently did my level 1 safeguarding course for guider training and I don’t understand how allowing boys and girls to share private spaces is okay”.

Why is this legal challenge so necessary?

These are hugely significant issues for ALL children. Children with genuine gender dysphoria need help and support. But confusion and unhappiness about one’s identity may spring from a variety of sources. It is dangerous to assume – as apparently we must now all do – that the moment a child declares a desire to ‘change sex’ that this stated desire must be supported without any examination into what underpins such a significant assertion.

It is dangerous because it seems many of those now responsible for devising and implementing safeguarding for children have apparently jettisoned its most basic and obvious principles in order to promote ‘inclusivity’ and a pathway for children of ‘affirmation’. Such a pathway, leading as it often does to medication and surgery, has very little credible evidence to support it as being in the best interests of children and worrying indications that it has the potential to do very serious – and irreversible – harm.

Refusal to allow deviation from the ‘affirmation model’ – or, even worse, to accuse those who raise concerns of some kind of ‘hate speech’, risks serious harm to children. The prescription of puberty blockers and other drugs to children is now the subject of a separate legal challenge to the Tavistock and Portman NHS Foundation Trust AND investigation by the NHS

It is very alarming for me to note that so many seem so invested in protecting the purity of the affirmation message that they will resort to very determined efforts to silence and intimidate any who speak up against it.

I note with particular concerns the recent actions of Social Work England – the new social work regulator – who are ‘investigating concerns’ against two senior social workers who have expressed their views about child safeguarding and issues of transition.

When even those, whose entire professional careers have been dedicated to promoting and protecting the rights of children, may not speak without fear of that career being ended – is a pretty stark indicator of just how bad things have become.

I hope that the various legal actions, now either pending, awaiting judgment or appeal will assist to bring some clarity back into the debate and some accurate representation of the law.

We all want the same thing – for children to be safe. To have the best chance they can have, to be the best adults they can be.

For some – this may mean a process of transition. For others – I suspect the majority – they need access to support, therapy, counselling and an environment were they are protected against bullying or other forms of harassment. And some children need to have respect shown to their sex based rights, to protect their safety and dignity.

But above all – children need honesty from the adults charged with keeping them safe. And safeguarding assessments based on actual risks and harms, not on adult wishful thinking.

The Crown Prosecution Service in the Classroom

This is a post by Sarah Phillimore

On Friday January 24th 2020 I was alerted to the recently launched ‘Commentary on the LGBT Bullying and Hate Crime Schools Project Classroom activities and guidance for teachers’ [EDIT this guidance is no longer available at this link. It was removed from circulation and withdrawn after the CPS received a letter before action threatening judicial review]

This is for key stages 3 and 4 – i.e. children aged 11-16.

The CPS initially said this pack could ONLY be seen by teachers.

I found that extremely alarming. I have a child of my own in the school system so my alarm extends far beyond my professional criticism of guidance that is in places muddled or plain wrong.

I set out at the end of this post my detailed comments on the text in the pack. I could not access the videos or PowerPoints and did not seek them out as the CPS were apparently saying this was the reason the pack may not be shared with parents, because it involves ‘sensitive’ case studies of – I assume – ‘real life’ children.

I will put aside for now the wisdom of attempting confidentiality around such private data in a pack that is presumably sent to every secondary school in the country. This is the least of my worries right now.

I emailed the CPS to ask them if I may publish the guidance and my commentary. They emailed me on January 27th to ask if they could see my commentary. I emailed it the same morning. EDIT They then replied on the 29th with a link to the text of the guidance which was now public. But not the videos or powerpoints. I don’t flatter myself that my decision to blog or not to blog made any difference to their decision – but I suspect the telephone calls from numerous journalists made them realise they could not continue to keep the text hidden from parents.

If they had not done this, I would have published the guidance in any event. It is a matter of public interest. I have not shared the videos or PowerPoints and therefore I hope that risk to vulnerable children is reduced. But putting vulnerable children in official school guidance and using that as a reason to keep parents from seeing it, would be a bizarre and unacceptable state of affairs and I very much hope that is not what has happened here.

Perhaps the CPS would like to explain what prompted their change of heart.

TL:DR Summary of concerns


As the table below indicates, I am very concerned about this guidance. But if I was asked to pick my Top Three, they would be these.

  • At page 25 there is an alarming list of behaviour, some of which is trivial or undefined which is offered as examples of ‘hate’ – this is particularly concerning as the Guidance repeats throughout that there is no statutory definition of homophobia or transphobia, and a ‘hate’ crime or incident relies entirely on the subjective perception of the alleged victim or bystander. This list includes ‘ostracising from a friendship group’ and separately (and undefined) ‘rejection’.
  • At page 33 there is an apparent attempt to create a ‘hierarchy of rights’ and to place LGBT+ at the top. This would seem to be unlawful as it discriminates against other characteristics protected by the Equality Act, such as race and disability. Surely schools should be developing robust policies against bullying which apply to all children, not attempting to set up one minority group as more deserving of protection.
  • I note that section 4 has as ‘activity 1’ ‘identifying potential criminal charges’. I am troubled by the implications of this, in the context of guidance that purports to help teachers and students ‘identify and report’ hate crime. Nor am I clear what a teacher is supposed to do if they or a student identify another classmate as having displayed ‘hateful’ behaviour. Where will it be recorded and to whom will it be disclosed?

Given that the guidance is very clear about how seriously such hate crimes and incidents should be taken, I am worried that a clear incentive is being set up here to encourage students to report one another’s behaviour or for a teacher to feel under pressure to refer it on to the police.

It is giving a very clear message to girls that anyone can be any ‘gender’ they like (including ‘pan’ ‘omni’ and ‘a’ sexual, none of which are defined anywhere in the guidance) and that it is ‘hate’ to object to anyone in your space, or to ‘reject’ them – again undefined but clearly means something other than social ostracism as that is given its own separate mention. So what DOES ‘rejection’ mean in this context? It has to mean sexual rejection. There is no other way children can ‘reject’ each other. They aren’t offering employment prospects.

I am therefore very troubled that this guidance was initially being kept from parents in its entirety – although they may now, after media pressure, see the text of it.

As is sadly common with all documents I have read which purport to promote the rights of the ‘trans child’, I can see no acknowledgment of or discussion about parental responsibility or Gillick competence in this guidance. As it is aimed at 11 year olds I consider that is a potentially serious omission.

I hope that a legal challenge will be made to this guidance. The influence of Stonewall etc is clear to see.

The time to speak up is now.

I will leave you with this quote from mumsnet user michelleoftheresistance

It’s already known the massive comorbidities going on with children presenting with gender identity issues, pretty much the same comorbidities coming up over and over again for other vulnerable kids. Treating one group as more privileged and better served than others is going to create resentment, particularly at a time when mental health care and SEND provision is dire and many families are angry and struggling. It will do nothing to meet the Code of Practice or Equality Act’s requirement to promote good relationships between groups: this will actively damage it. It does nothing to address the root problems underlying why children are becoming confused and distressed about their identities and bodies. It’s also inevitably going to incentivise transitioning. And that’s on top of the always there, bald insensitivity and rejection of female kids with history of abuse and sexual trauma, female kids whose religions don’t allow for going along with personal choice of sex over reality, female kids whose disabilities won’t bend in that direction, etc etc. 

Further reading

Thread on mumsnet discussing the CPS Pack

The Safe Schools Alliance have written a template letter for parents to send to the CPS

Detailed comments on the CPS pack

My commentary is in italics

HOW TO USE THIS PACK
How to use this pack – it is directed at ‘gay bisexual transgender and questioning people’ BUT NOTE at page 16 it includes ‘asexual’ ‘pansexual’ and ‘omnisexual’ people but gives no definition, then says definition of terms may change in any event. What is meant by ‘questioning’ people? How are they identified or defined?

The Glossary of Terms says (p19) ‘the process of exploring your own sexual orientation and/or gender identity’.
How is this different from ‘being a teenager’?

P7 Section 4 deals with identifying criminal charges ‘these are optional and additional. Teachers can use as many or as few of them as they wish… However we strongly recommend teachers consider them as they will deepen the students’ understanding of impact of anti LGBT behaviours…’ Unhelpful phrasing. So if this section is ‘optional’ all others are compulsory?
Clear indication given that teachers are to devote time to this
WHO is identifying criminal charges and why is this the job of a teacher?

P8 Before using this pack teachers are advised to ‘inform themselves’ by visiting a number of websites. Including Gendered intelligence and Stonewall. Clear evidence of bias in linked materials. Stonewall and Gendered Intelligence are well known for promoting narrative that questioning GI is ‘transphobia’. Other sites – Proud Trust and Schools Out I had not known about, but brief glance at their websites indicate they are in the Stonewall mould.
Why no reference to Transgender Trend or Safe Schools Alliance?

P9 ‘LGBT issues are best addressed in a school environment which explicitly supports and includes students’ What does this mean? Is asking questions about biology/GI to be seen as not supportive or inclusive and therefore frowned upon?

P9 All staff need to know how to challenge students demonstrating hostility to LGBT people What is the definition of hostility?

P9 Teachers must be especially mindful of the fact that some students in their groups will be LGBT and must be protected whether they are out or not Protected from what? Questions? Challenge?

P9 Make sure the students understand that anti LGBT behaviour is not caused by LGBT people; it is caused by people with homophobic attitudes. Trans people are not necessarily homosexual. Transgender is NOT a sexual orientation. This is setting up potentially corrosive expectations – that anyone who asserts anti LGBT bullying will be telling the truth and therefore presumably no investigation of their allegations will be required.

P9 Teachers should bear in mind that the most important thing is for students to discuss, think about and understand the issues This is not an appropriate exhortation when there is little clarity about what constitutes appropriate questioning and what will be seen as homophobia or transphobia. What ARE students allowed to discuss?

P10 STARTING TO USE THIS PACK
When an act is classed as a hate crime, the courts can impose a tougher sentence on the offender under the Criminal Justice Act 2003 It is odd for this sentence to immediately follow the exhortation that it is discussion that is important.

P10 What does the CPS mean by hate crime?
ANY criminal offence which is perceived by the victim or any other person to be motivated by hostility or prejudice based on race, sexual orientation, disability, or person being transgender Exactly the problems identified in the Fair Cop JR – Subjective definition of crime – Protected strands do NOT mirror the protected characteristics of the Equality Act – Being transgender in any event is NOT a protected characteristic. The actual protected characteristic is gender re-assignment “the process of transitioning from one gender to another.”

P10 What does the police mean by LGBT hate incidents? There is no statutory definition of a homophobic or transphobic incident Again – definition of ‘crime’ or ‘hate incident’ entirely subjective. Teacher has no objective standard by which to judge the behaviour of students.

P14 The CPS and the role of the police
P14 ‘It is more likely that prosecution is required if the offence was motivated by any form of prejudice against.. race, gender, disability age, religion, sexual orientation or gender identity’ Again, does not reflect the protected characteristics of the Equality Act. Why not?
Again, ‘gender identity’ is NOT in any event a protected characteristic.

[EDIT May 19 2022 I have revisited this blog post in light of the Tribunal hearing today, dealing with an appeal against the CPS refusal to disclose details of its discussions with Stonewall and other groups. I am now not sure what point I was making here; hate crimes deal with ‘monitored strands’ NOT protected characteristics and ‘transgender identity’ is a monitored strand. This confusion between ‘monitored strands’ and ‘protected characteristics’ is I am sure responsible for a lot of confusion about these issues]

P16 AIMS AND OBJECTIVES
What do we mean by LGBT+? … represents other sexual identities including pansexual, asexual and omnisexual and questioning people exploring their sexuality. Where will we find the definition of these terms?
Is there a universally accepted definition?
I note the Glossary at p19 does NOT contain a definition of ‘asexual’ ‘omnisexual’ or ‘pansexual’

Pg 19 defines ‘intersex’ as ‘When a group of conditions cause people to be born in between male and female. Sometimes this does not show up at birth.’ This is an inaccurate and offensive attempt to define disorders of sexual development.
P19 ‘transition’ is defined as ‘a process through which some transpeople begin to live as the gender with which they identify, rather than the one assigned at birth’. ‘Gender’ plays no part in the birthing process. ‘Sex’ is observed and recorded at birth unless a baby is one of the tiny percentage who have ambiguous external genitalia, due to a DSD.
P19 Transphobia is defined as ‘discrimination against and/or dislike of trans people’ This is NOT the definition of a ‘phobia’. The NHS defines a phobia as “an overwhelming and debilitating fear of an object, place, situation, feeling or animal”
Again – WHAT constitutes discrimination or dislike? Any questioning of the assertion that a transwoman is a woman for e.g? Any reference to humans as sexually dimorphic species?
How can a mere ‘dislike’ of any person’s characteristics, possibly constitute a ‘phobia’ And absent any accompanying discrimination, can it become a hate crime or hate incident?

P20 ‘This glossary is not a definitive list and it is important to remember that people should be referred to in the way that they wish to be referred to. It is also important to note that definitions can vary and can change over time’. In the context of guidance offered under the mantle of identifying hate crimes, this simply isn’t good enough. How will the teacher know the definitions have changed? Who changes them? How is knowledge of this change disseminated?

P 21 SECTION ONE Activities and worksheets
P23 Everyone has a sexual orientation … it is the part of a person’s identity that describes who people experience attraction to, commonly based on gender… gender identity is a person’s sense of themselves as being a boy/man woman/girl both or neither. Gender identity is not necessary dictated by a person’s physiology. This is nonsense. Sexual orientation is a monitored strand. It means sexual attraction to the same sex. This definition effectively erases lesbians by saying that a male bodied person can identify as a woman even if retaining penis and testicles.
If a teenage lesbian then objects to a sexual encounter with a male bodied person – is that sufficient ‘dislike’ or ‘discrimination’ to warrant a referral to the police?

P24 Students should be told that the behaviour in school is dealt with through education, the school disciplinary procedures etc.. it would be rare for incidents to be reported as crimes. Explain then the circumstances in which an incident WOULD be reported as a crime.

P25 Categories of hate crime or hate incidents As a general point, some of the examples given are filmsy and particularly dangerous when coupled with the existence or not of ‘hate’ being determined by the alleged victim or bystander.
‘ridiculing and stereotyping comments’ Unclear what this means.
Ostracising and excluding from friendship groups So it is enough that the ‘victim’ or any bystander simply perceives this ostracism as being by virtue of being trans
How can schools sensibly police friendship groups?
Rejecting someone or not wanting to work with them because of their sexual orientation, trans identity or perceived trans identity So a lesbian teenager is compelled not to ‘reject’ another student who alleges they are a transwoman?
What IS included in this word ‘rejecting’?
Showing or distributing anti LGBT+ leaflets comics or other propaganda’ Define propaganda! On this definition the recent episode of South Park would constitute ‘hate’
Wearing Anti LGBT+ Symbols – for eg badges or Tshirts What will count as ‘anti’? The LGB Alliance? Fair Cop?

P33 LGBT Bullying ‘worse’ than all other forms of bullying I think this is the core of my concern with this document. Primacy is being given to LGBT rights on a false basis. For example claims this bullying is ‘different’ because people get killed. Well, so do disabled children! So do black children! This is a very concerning document. It is unlawful to give primacy to right group over another. That in itself risks discrimation.

The person being bullied or attacked because of their sexual orientation will be afraid that other members of their community might also be attacked and are at risk WHAT IS THIS DRIVEL
Most of the ‘examples; here apply equally to race hate.

P36 It is never appropriate to ask a gay person to use separate changing facilities Really? So where does the gay transwoman go, if in reality she is visibly male bodied with penis and testicles and makes girls uncomfortable when sharing a space? Presumably if any girl objects she is guilty of ‘hate’.
P67 Tell the students that no one should put up with bullying, whether its happening to them or they are drawn into a situation where it is happening to someone else. So provide an impetus to escalate any complaint?

P90 We will not tolerate bullying or harassment and if we see it we will report it and see that it is dealt with. Sinister in context. Report to who?

P101 SECTION FOUR IDENTIFYING POTENTIAL CRIMINAL ACTIVITIES
Inside and outside school – on the bus So children are to be on the look out for crimes even beyond the school.
P104 In the final class they can discuss the possible charges they have identified and what the potential consequences would be Sinister in context
Tell the students that guidance from the EHRC generally encourages organisations and service providers to be trans inclusive. This means treating trans people according to their gender identity and only excluding trans people from facilties in exceptional circumstances where this can be justified. Unhelpful and confusing fudge of existing law.
Worksheets to ‘train’ children as investigating offices and to decide what charges to bring Dear Lord.

Further commentary on the videos by a colleague at Fair Cop

SP : I have not seen the videos, but from these comments I am concerned. The use of language such as ‘henchperson’ seems utterly bizarre and deliberately pejorative.

  1. Videos: FEAR acronym – False Evidence Appearing Real – does not distinguish between justifiable fear and baseless prejudice. Conflating the two, and reducing fear to the category of baseless prejudice .is gaslighting girls into accepting boys into their toilets and other single-sex facilities.
  2. Definitions of homophobia, transphobia, etc. Interesting to note that the definition of homophobia does not extend to those perceived to be gay, but the definition of transphobia does extend to those perceived to be trans.
  3. The definition of hate crime/incident: this includes not merely acts that are objectively negative (where it is perceived that the perpetrator is motivated by hate), but also omitting to do something (where it is perceived that the perpetrator is motivated by hate). This omission does not need to be something that an individual reasonably and legitimately expects, or that the law demands is provided (e.g toilets). The omission could also be something that the LGBT+ person simply desires (e.g. the girls toilets, or admission to a particular girls friendship group). The only necessary factor is that it must be perceived by someone that the decision has been motivated by hate.
  4. Video: Transition.
    The questions in and of themselves are actually quite valid. Here we see the attitude of the girls (which is aggressive) conflated with the content (which includes that which is reasonable) with the result that the content is also positioned as unacceptable and a hate incident.
  5. Video: Toilets.
    The girls merely correctly identified him as a male.
  6. Discussion of, much less asserting of, sex-based rights under the EA becomes impossible and falls into the category of hate bullying/hate incident/hate crime. This is because any discussion of these rights, that permit the exclusion of trans individuals where it is a proportionate means to a legitimate end, must make reference to people’s biological sex whatever their felt gender identity may be. Thus it involves misgendering, upsetting people, being seen as offensive and may out people as trans against their wishes. It simply cannot be the case that discussion of existing rights enshrined in law, and the protection and needs of the members of a protected category become hate incidents or hate crime and liable to criminal prosecution.
  7. Where are the other 2 in the series of 3 resource packs developed to increase awareness of identity-based bullying and hate crime? Are these similarly forbidden to parents? (This is different from edition 1 of this document).
  8. The definition of transgender on page 19 means that a male who has neither socially nor medically transitions should still be fully accepted as a girl purely based on his say so.
  9. Use of the term ‘henchperson’ is extremely sinister. This entire document is designed to install fear and to train children to police each other’s behaviour, friendship groups, speech etc.

Further Reading

See here the ‘live tweets’ of the Tribunal hearing on May 19th 2022 to determine an appeal against the CPS refusal to disclose information about its discussions with Stonewall and others, on the basis that ‘public interest is minimal’ and such sensitive issues require a ‘safe space’ for full and frank discussion.

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

This is a post by Sarah Phillimore

And what are the dangers for children of ignoring this?

TLDR:

However intelligent or articulate a child is, they do not necessarily have the same ability as adults to make decisions, particularly those with long term consequences. The capacity of any child under 16 to make decisions about medical or surgical treatment has to be carefully analysed.

Any guidance for adults working with children which ignores or downplays the importance of both Gillick competence and parental responsibility is probably unlawful and probably harmful to children and should be challenged, for all the reasons that I set out below.

Safeguarding Children.

Where adults and children interact, ‘safeguarding’ must be a key consideration. Sadly, some adults are dangerous to children and some children may wish to take risks which will hurt them. As a general point, safeguarding of children demands robust risk analysis. Failures in child safeguarding usually involve an inadequate risk assessment which has failed to either understand or share relevant information. Risks approached on the basis of untested assumptions are unlikely to be properly assessed.

The welfare of children is generally held to be the paramount concern for anyone making decisions about or on behalf of a child. However, ‘paramount’ does not mean ‘exclusive’ – the legal rights of others may need to be considered alongside the child’s welfare.

Any guidance which asserts that it promotes safeguarding of children in the context of choices children aspire to make, ought to be clear about two very important issues:
a. ‘Gillick competence’
b. Parental responsiblility.

If the guidance isn’t clear, that is a red flag that the author of any such guidance either doesn’t care about or doesn’t understand the need to protect children.

Gillick competence

Gillick competence refers to the recognition that the capacity of a child to make serious decisions about his or her life will increase as does the age and understanding of that child. It is a very important concept in the area of consent to surgical treatment – if a doctor doesn’t have a valid consent from either a parent or the child, or a court order, the doctor could be guilty of a criminal offence if he or she goes on to operate on a child.

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

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

‘Gillick competence’ derives from the decision of the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 where a mother attempted to argue that children under 16 should not be provided any treatment or advice around sexual issues. The court disagreed and said that younger children could access such services, as long as they were able to understand the implications – i.e. were they ‘Gillick competent’?

The case also gave rise to the ‘Fraser guidelines’ which refer specifically to consent to contraceptive treatment and advice – some argue that it’s important to keep the two separate (see this post from the Quality Care Commission) but I suggest that there doesn’t seem much merit now in keeping advice and treatment around sexual matters separate from a child’s ability to consent to other forms of treatment.

See also Axon, R (on the application of) v Secretary of State for Health & Anor [2006] EWHC 37 (Admin) where the applicant sought to challenge the lawfulness of guidance which allowed doctors not to inform parents that children under 16 were seeking advice or treatment about sexual matters.

The Judge affirmed and was bound by the (then) House of Lords in Gillick and concluded that doctors did not have to tell parents provided they were satisfied that the child understood ALL aspects of the advice, could not be persuaded to tell his or her parents and would be at risk of harm if the treatment wasn’t provided (see para 154) .

What information should be given a child by a health professional?

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.”

Doctors need to take even more care with children under 16 as it cannot simply be assumed they have capacity to make decisions; this must be examined in light of their age and understanding.

The two often go hand in hand with neuro typical children. Some teenagers may lack capacity entirely or in most areas following brain injury or learning disability, as set out in the Mental Capacity Act, Decisions then would need to be made by adults for them, regardless of their chronological age.

Most – but not all – 14 year old children would be ‘Gillick competent’ to make decisions across a wide range of issues because their understanding will increase along side their chronological age. Most – but not all – 7 year old children would not be able to give informed consent to anything much beyond what they would like to eat or what clothes they would like to wear.

Determining ‘Gillick competence’ is therefore fact specific and depends on the circumstances of each individual child.

The implications of Gillick competence are provoking debate prior to the court hearing regarding Keira Bell’s challenge to the clinical decision making process at the Tavistock, in placing children on a pathway to medical or surgical intervention for ‘sex reassignment’.

I do not think this legal case in any way challenges the concept of Gillick competence; I think rather it protects it. Consent to medical treatment is only valid if the child has sufficient age and understanding to appreciate what they are signing up for – what are the material risks and the hoped for benefits? It will be interesting to see what the court makes of these arguments in October 2020, so watch this space.

Parental responsibility

Parental responsibility is defined at section 3(1) of the Children Act 1989 as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.”

The House of Lords in Gillick approved the following dictum of Lord Denning MR

… the legal right of a parent to the custody of a child … is a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice.

This is a significant matter of status as between parent and child and, just as important, as between each of the parents. (see W (Children) [2012] EWCA Civ 999).

Interplay between Gillick competence and parental responsibility

These two concepts are thus intertwined. The younger the child and the less capacity he or she has to make decisions, the greater the extent of the exercise of parental responsibility. This is important for two main reasons.

  • Most parents, most of the time, have their children’s best interests at heart. Parents are likely to be an important part of decisions around keeping children safe. Who else is advocating for the child?
  • Families are also the ‘breeding ground of diversity’ and entitled to special protection – see Baroness Hale B (Children) [2008] UKHL 35.

Thus the importance of parental responsibility is recognised and protected by domestic and international law.

As was set out by Lady Hale in para 72 of The Christian Institute & Ors v The Lord Advocate (Scotland) [2016] UKSC 51 (28 July 2016):

Many articles in the UNCRC acknowledge that it is the right and responsibility of parents to bring up their children. Thus article 3(2) requires States Parties, in their actions to protect a child’s wellbeing, to take into account the rights and duties of his or her parents or other individuals legally responsible for him or her; article 5 requires States Parties to respect the responsibilities, rights and duties of parents or, where applicable, other family or community members or others legally responsible for the child to provide appropriate direction and guidance to the child in the exercise of his or her rights under the Convention; article 14(2) makes similar provision in relation to the child’s right to freedom of thought, conscience and religion; article 27(2) emphasises that the parents have the primary responsibility to secure, within their abilities and financial capabilities, the conditions of living necessary for the child’s development;

And at para 73:

Individual differences are the product of the interplay between the individual person and his upbringing and environment. Different upbringings produce different people. The first thing that a totalitarian regime tries to do is to get at the children, to distance them from the subversive, varied influences of their families, and indoctrinate them in their rulers’ view of the world. Within limits, families must be left to bring up their children in their own way.

I would therefore expect to see any guidance directed at the safety and welfare of children to give due consideration to both these issues. A failure to do so, risks diluting the effectiveness of advice around safeguarding, and being an unlawful infringement of parental responsibility.

The younger the child in question, the more serious both these failings.

Safeguarding concerns around transitioning children need careful assessment. These could involve:

  • parental pressure to transition due to homophobia or wish for attention
  • lack of parental support or understanding for a child who wishes to transition
  • failing to consider risk to other children of ‘gender neutral’ spaces, either within a school or on residential trips
  • failing to involve parents in discussions about the safety of children
  • a younger child who wishes to take puberty blockers

It is neither ‘kind’ nor ‘inclusive’ to pretend that risks don’t exist and to fail to have a clear eyed and open minded approach to how to deal with them. On the contrary, it is both dangerous and stupid – and, I assert, unlawful.

Children aged 4 are very different to children aged 14. Children are not kept safe by a refusal to discuss – or even admit – this quite basic fact. Any guidance or advice that does not deal clearly with the interplay between Gillick competence and parental responsibility should be approached with caution.

Be wary: guidance and commentary which fails

Trans Inclusion Tool Kit for Schools and Educational Settings 2019 – makes only superficial reference to Gillick competence and only one glancing reference to parental responsibility at page 15. Is explicitly aimed at primary school children.

No one, no issues is off the table when it comes to safeguarding – ‘advice’ from a social worker published in the BASW journal that issues around transition are ‘not’ safeguarding issue. No mention of either Gillick competence or parental responsibility.

Only adults? Good practices in legal gender recognition for youth – explicitly urges for removal of any minimum age requirement for access to services around transition.

When should a trans child’s identity be permitted to be a material issue in a family case? – blog by the legal adviser to the charity Mermaids. The answer is – rarely. If a child of any age says they are trans, they are trans.

Please do let me know of any other examples you can find.

And support the Safe Schools Alliance in their legal action against the Trans Inclusion Took Kit.

Further reading

Transgender children: limits on consent to permanent interventions Heather Brunskell-Evans January 2020

Religious practice, blood transfusion, and major medical procedures – Journal of Paediatric Anasthesia 2009

After the Adoption…

This is a post by Sarah Phillimore

What are the legal options or implications for an adopted child who wishes to spend more time living with their natural parents?

I read recently a very interesting post on the MummyTigerBlog about ‘When is a mum not a mum?’

The blogger adopted two girls and managed to forge a relationship with their natural mother – ‘mummy Jo’. She writes of the importance of that relationship for the girls and the questions they now ask:

The trauma of separation from natural family, their experience of foster care and subsequent adoption has had a lasting impact on my children, an impact that, despite rebuilding the severed natural family relationships that are so important to them, continues to hurt for both girls, although in very different ways. For both girls the re-established relationships with their natural family has been a huge help in their healing process and for their identity as they approach adolescence and the teen years but still brings up many questions of why? Why me? Why weren’t we kept together? Why weren’t we allowed to see our brother?  And more recently why can’t I live with Mummy Jo?

The emotional and legal implications for children in this situation are likely to be complicated. I cannot speak to the emotions, other than to agree that the importance of relationships with birth parents and siblings can be positive and significant and we need urgently to reconsider our historical clinging to adoption as ‘a closed shop’ – I have written about this in more detail in this post, Contact Post Adoption – Time for a new Default Position?

However, I thought it might be helpful for other families in this position to consider what are the legal implications of an adopted child wishing to spend more time with his or her family of birth – or even move to live with them.

The starting point is to remember the consequences of an adoption order – this removes parental responsibility from birth parents and the adopted child becomes the child of the adoptive parents. If the adoptive placement breaks down, this does not restore the parental responsibility of the birth parents. Some judges have gone so far as to say that adoption destroys ANY consideration of an Article 8 right between parent and birth child. Given that Article 8 protects psychological integrity, I have always doubted that this could be correct in law, but so far as I am aware there is no case that has looked at this point in the Court of Appeal or beyond.

Can adoption orders be overturned? Yes, but it is rare.

It is possible for the court to revoke an adoption order – i.e. discharge/end that order –  using its ‘inherent jurisdiction’ but this is a very exceptional and very rare step for the court to take given that ‘adoption’ is a statutory process that is supposed to facilitate the creation of the new ‘forever’ family.

The case of PK v Mr and Mrs K [2015] EWCH 2316 is one of the rare examples in case law where an adoption order was revoked – it highlights how exceptional this is. PK was nearly 4 when she was adopted by Mr and Mrs K in May 2004. However in 2006 Mr and Mrs K sent her to live with other family members in Ghana where she was subjected to significant abuse. In mid July 2014 PK returned to England and was reunited with her biological mother and grandmother. She became a ward of court on her own application and her mother was granted full care and control. PK was very clear she wanted to revoke the adoption, live with her mother and change her name. The court had no doubt that this was the right outcome for PK.

An adoption order was also revoked in the case of Re J (Adoption: Appeal) [2018] EWFC 8 but again, the circumstances of this were unusual; the child had been adopted by his stepfather and his mother had lied about the father’s whereabouts. When the father found out he applied for the adoption order to be revoked and the court agreed – but it made no difference to the child’s day to day life as he remained living with his mother.

But does the adoption order need to be revoked?

The situation described by the blogger is not one where the child is reacting against an adoptive placement where she has been mistreated – rather the child, now a teenager is expressing a wish to live with her natural mother. It’s interesting to speculate what the court might do if the child did want the adoption order revoked in these circumstances – but I am not aware of any similar reported case.

This is unsurprising, given how rare it is for an adoptive and birth mother to be able to work together in the way that the blogger and Mummy Jo have been able to do. But it may well become a more usual situation; and I hope it does. For a long time now I and others have thought that the ‘closed shop’ model of adoption does not serve children well.

However, this puts the blogger in the uncomfortable position of trail blazer. I am not aware of this situation ever coming before the courts before. What are the legal options or implications for an adopted child who wishes to spend more time living with their natural parents?

This does need to be thought about. A weekend here and there is unlikely to cause many problems – but if a child spends many months or moves permanently to live with a person who does not have parental responsibilty for them, this has the potential to cause problems.

There is a limited form of parental responsibility under section 3(5) of the Children Act 1989 which states that someone who has the care of a child but no PR may (subject to the provisions of this Act) do what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting the child’s welfare.

But this may not be sufficient to allow the carer to make decisions for the child that the child needs to be made – particularly if the child isn’t Gillick competent.

Could this situation be a private fostering arrangement? This is an arrangement whereby a child under the age of 16 (or 18 if the child has a disability) is placed for 28 days or more in the care of someone who is not the child’s parent(s) or a ‘connected person’. A connected person is defined as a ‘relative, friend or other person connected with a child’. A relative under the Children Act 1989 is defined as a ‘grandparent, brother, sister, uncle or aunt (whether full blood or half blood or by marriage or civil partnership) or step-parent’. The blogger writes:

Mummy Jo is very much a parent, blood relation and a ‘connected person’, the girls were connected to her via the umbilical cord however does this stand up legally? Currently she has no legal connection. What if the girls stay for over the 28 days, a month? the six weeks of the summer holidays? is this a ‘private fostering’ arrangement or just the girls staying with their Mum, because that’s who she is in their eyes, but not the eyes of the law. Any private fostering arrangement needs to be reported to the Local Authority to assess and monitor… an option none of us would relish!

I don’t think this is a private fostering arrangement – I agree that Mummy Jo is a ‘connected person’ – simply by virtue of her friendship with the adoptive mother or by her biological connection.

How should – or could – this situation be regulated?

So how could or should this situation be regulated? I discussed this with a newly qualified social worker and her reaction was very interesting – one of great concern for the emotional welfare of the child and what would happen if the living arrangements with her birth mum broke down. We discussed whether any local authority should get involved and whether the child’s school might want to refer it on. In this particular case, there seems little doubt that Mummy Jo is a tried and tested ‘safe parent’ – but what of cases where there is more doubt?

We batted back and forth the question of whether this kind of situation requires professional intervention. I argued that an adoptive parent has been assessed as able to be a child’s parent and should be allowed to get on and do what they think is right for their child – the state should not intervene without evidence of significant harm.

The social worker responded that I could not treat an adopted child in the same way as a biological child, as it was inevitable by the very fact that the child had been adopted that there had been significant trauma in that child’s life and there ought to be some professional oversight of any such move.

I can see the force in that argument. There is no doubt in my mind that social media has made it very easy for children to find their biological parents. I have no doubt that situations are going to arise where there is not the good working relationship between adoptive and birth parent that we see in this situation. We need to start thinking more about the legal framework whereby a child moves from adoptive to birth parent.

We ended our discussion by thinking that the solution here was a child arrangements order. That would provide a legal framework for the birth mother and also some oversight of the process by way of a section 7 report.

However – as the blogger comments, this route does not solve all the problems

Do we go to court to get a Child Arrangement Order (previously residence Order)? A child arrangement order would only last until the girls were 16 and they still wouldn’t have the legal ties to their natural family. Can an adoption order be dissolved in the UK? Where would that leave the girls if one wants to stay with me and another return to Josephine, their relationship with each other and their big sister legally severed if the adoption is no longer in place? What about visits, if they want to come back to stay with me for 28 days or more, or come abroad on holiday with me and their sisters, would we have the same issues? Wherever the girls live, they will always be family, we’ve shared good times and bad, learned from each other, laughed and cried together, and as long as any of my children want I will always be there for them, severing the adoption would allow them back to where they belong but in my heart, as with Mummy Jo, the girls will always be ‘our girls’, unfortunately legally it isn’t so easy!

In the end – is the only solution for the adoption order to be revoked and the birth mother to then apply to adopt her own child? This cannot have been a situation envisaged by any of those drafting the Adoption and Children Act! Although at para 20 of the PK case the court comments:

PK has extremely strong feelings about her legal status. It is very important to her that the court takes account of her wishes and firm views which are that she should no longer be the adopted child of Mr and Mrs K but instead revert to having legal status as a member of her biological family.

I do not know what the court meant by ‘revert to having legal status as a member of her biological family’ as revocation of the adoption order does not – so far as I know – restore the PR of the birth parents. So what is meant here by ‘legal status’ ? Am I wrong about revocation of an adoption order not restoring a natural parents’ PR? Or presumably, the powers under the inherent jurisdiction being theoretically limitless, the High Court could restore PR?

Maybe someone has to volunteer to be a test case.

I would be very interested to hear other’s views – particularly if there are any reported cases I have missed which deal with this situation. I am pretty confident that this will not be the first or last example of the complexities that can follow the ‘happy ever after’ adoption order.


Child Protection Resource: 2019 The Year in Review

This is a post by Sarah Phillimore

It has certainly been a busy year. 2019 made me think again and hard about some of my previously unchallenged assumptions – that the people I met on this road were invariably to be trusted to fight the good fight. I have seen instead increasing polarisation and promotion of narrative over substance. I have seen examples of cowardice and dishonesty from those I previously admired that has made me gasp.

But it is always better to know. I have certainly dialled down my ‘crusading’ given my realisation of just how tricky things are out there. I will remain very interested in what the 3 month ‘Inquiry’ into the FJS can possibly achieve, particularly given the ‘capture’ of many campaigning groups by people I know to be criminal and dangerous.

I remain sceptical that journalists have the ability or even the will to report on the FJS accurately or responsibly. While I was very pleased to be part of the appeal that lead to new October guidance on Reporting in the Family Courts, this may yet be a phyrric victory if journalists cannot be persuaded to move away from the salacious headline over accurate and fair reporting.

But the aim of the CPR is not to provide a platform for me to moan about things, although I will happily admit to hijacking it on a few occasions to do exactly that.

The aim of this site has always been to provide accurate and useful information for everyone in the child protection system – parents, lawyers, social workers etc. So its interesting to look at what posts were popular this year.

What did the audience want?

In 2018 the three most popular posts, with not much to divide them, were

interestingly, the post about section 20 of the Children Act 1989 – which in previous years had vied with the post about mental health as the most popular, had slumped to 4th place – which I hope reflects the growing unease and greater knowledge about the use and misuse of section 20.

So what was the picture in 2019?

This is – for me – pretty interesting. Its the first time since the site’s inception in 2014 that the post on mental health in care proceedings has been knocked from the top spot – to be replaced with ‘The Social Worker is Out to Get Me – Common concerns we hear from parents’ . In 2019 that post had gathered about 10K new views. I can only speculate why that is but guess that it may be a reflection of the growing awareness of ‘fake news’ and manipulation of social media. It’s interesting to note that all Top 3 posts are now from the ‘Mythbusting’ menu of the website.

The post meanwhile that continues to provoke the angriest comments was from June 2018 where I attempted to break down an argument that mothers abused children more than fathers – I concluded that it was pretty even but fathers just pipped the mothers at the post. The degree of consistent abuse and vitriol I have received from this post indicates that it is a very sensitive area and those with a stake in it often express themselves in very worryingly aggressive tones.

The massive dip in users in November 2019 is explained by a switch to a different host and the site went off line for 2 days.

Hopes for 2020

In 2019 the site had 390,871 users, the vast majority – 87% – new users coming from organic google searches. This is an increase from 2017 at 340,024 but a decrease from 2018 when this number was 437,338.

Again, I can only guess at the reason for this dip. It may be due to Twitter now refusing to publish anything with a link to this site; this censorship began around April 2019 and has never been explained by Twitter, despite frequent efforts to contact it. The noticeable ‘dip’ in users around that time as can be seen above, supports that view.

It may also be that other and better sources of information are spreading and available.

I really hope its the latter. As I keep saying – either we simplify our laws and our procedures or we provide better support for those who have no choice but to go through the system. Once the analytics show me that no one is reading anymore, then I will close down the site.

But for now, I think the need is still there. Let’s see what 2020 brings now we can finally focus on something other than Brexit. One thing I hope to see in CPR’s future is its own podcast!

A Happy New Year to all my readers.

Who Cares? An interactive play by What Next Theatre Group

https://twitter.com/SVPhillimore/status/1202358430704578561?s=20

On December 4th I travelled to see the production of the ‘What Next Theatre Group’ who describe themselves as ‘a new and exciting company working with Gloucestershire County Council and the Nelson Trust to present a new play in three scenes called ‘Who Cares?’ The play deals with the difficult issues surrounding adoption and the real consequences for the family and professionals involved’.

it was clear that the intent went beyond the mere presentation of a piece of theatre – after the play the actors and real life professionals gathered on stage to take questions from the audience – the actors remaining in character.

As the Theatre Group says:

We think that there is a rapidly increasing interest in the work of the family court and in the social issues with which it deals. We want to work together to show what may be done to help people through the most difficult ties of their lives – times when they experience extreme loss and degradation. We hope that by combining legal knowledge, theatre experience and the important work of the Nelson Trust, we can help the audience to consider new ideas and practice changes and understand some of the social issues that arise in this difficult area

So what follows are my impressions about how this enterprise met its stated goals.

It was certainly a bold idea. I do not wish to criticise its staging as that would clearly be unfair – this is a group which was set up about 8 weeks ago and presenting its work in a brightly lit lecture theatre with a very difficult and small stage on which to work. I would like to see it performed in a more sympathetic environment – the actors alone cannot do all the work of enabling us to suspend disbelief and even a punchy script and talented performers will struggle against these surroundings.

I am also entirely unclear what the random ‘trans’ character Ella/Ed bought to the narrative, other than to enable some members of the audience to signal their deep understanding around issues of inclusivity and identity by putting questions to Ed about how his (fictitious) family coped with his search to know who he was.

One of the most powerful strands of the script was the fact that the mother was herself adopted at the age of four, and how her adoptive parents had struggled with apparently little support with her behaviour as she grew. This is worthy of more exploration.

I also felt that the way in which the scenes were ordered detracted from rather than powered up the narrative – the court scene came second, after a very powerful opening in the hospital where the social worker was assaulted by an angry and terrified young mother, facing the removal of her second child.

I would have liked to have seen the court judgment as the final scene – it was well done, and an uncomfortable experience to be forced as a member of an audience to consider how the legal language and dry rejection of the birth family as ‘suitable’ to care for a child, must feel to those who have to sit and listen and struggle to understand.

I suspect that a more accommodating stage would have allowed for the court scene to have more power, regardless of where in the time line it came.

However, I can see that the drive of the production was to explore how after these proceedings the mother was simply left behind – the circus packed up and moved on, her only option to find temporary hostel accommodation once her mother and baby foster placement came to and end. The court is not the ‘end’ for parents.

‘Show not tell’

Leaving the limitations of staging aside, how did this production succeed on its aim to ‘show, not tell’ and to educate people about the work of the family justice system?

Without interviewing the entire audience its hard to say for sure. But I think I picked up enough information to reach some tentative conclusions. I was able to interview two of the audience who had no choice but to answer my questions as I was driving them home. This was interesting. One was a teenager who claimed to have only come because I bribed her with steak. However, she was able to provide an animated response and the evening had clearly piqued her interest. She found that language used by the mother challenging – she appreciated that this was no doubt realistic but it put up a barrier for her being able to feel compassion and sympathy.

The other was a newly qualified social worker who was very enthusiastic and said it had been a ‘great learning experience’ for her. She felt frustrated that she hadn’t been able to ask questions of the cast and wanted to know much more about why the baby’s grandparents could not have cared for him and what underpinned the social worker’s relationship with the mother in the first scene.

She asked – and I thought this very interesting – why no one had commented on the fact that the social worker was physically assaulted in the very first scene. Why this is something that is just seen as ‘what happens’ to social workers,

During the question and answer session with audience and cast, I was struck by how many in the audience appeared to be social workers, given the laughter or angry murmuring that followed some comments. One of the biggest laughs followed a question to the social worker about why she wanted to do the job. When asked how she coped she replied ‘I have supervision’ which bought another cynical chuckle from many.

The assertions of the Nelson Trust that social workers were ignorant about ‘trans’ and addiction issues caused a definite ripple and some passionate responses that it was simply wrong to expect social workers to know everything about everything – they work in multi agency teams and part of their job is knowing when they DON’T know and where to send people to for help.

So I asked if the audience would give me a show of hands as to how many were social workers. It was about half the 150 strong audience.

And that is interesting. Because its part of why I am concerned that these efforts to help people understand will not bear the fruit that is hoped. Its part of the reason that I abandoned active campaigning earlier this year – as I was so depressed by the refusal of many to challenge their own narratives, how they used every attempt to widen conversations as simply support for that narrative, rather than a challenge to it that ought to be accepted.

HHJ Wildblood was asked by the audience why he had become involved. His answers were interesting – I paraphrase here:

People don’t see how the family court works, just don’t understand the system, so I put this on stage … feel don’t think, make up your own minds…really wanted to make the point for after care, parents matter too. The main work must surely be done before court.

The whole purpose of our lives in one word – compassion. There is no ‘them’ there is only ‘us’ – want to try and send out that message.

It is powerful to hear these words spoken by a serving and senior member of the judiciary. I do not disagree at all with his distillation of the central message into one word – compassion.

But what the audience reaction showed to me is that efforts to make people ‘feel’ rather than ‘think’ may do nothing else but cement their already strong ‘feelings’ about why the system doesn’t work or who is to blame. It was clear where the Nelson Trust thought the blame should lie – parents aren’t given ‘enough time’ to make changes. In one uncomfortable exchange with the birth mother the social workers were referred to as ‘fuckers’ – this made the newly qualified social worker very uneasy, coupled with the complete lack of reaction from anyone to the fact that the social worker faced a physical attack on meeting the mother.

Nor do I think the ‘enough time’ argument has any weight. When I started out, 20 years ago, care proceedings routinely took one or even two years to drag to conclusion. This helped no one, least of all the child. ‘Time’ alone cannot turn around a person’s life. ‘Time’ plus ‘effective intervention’ may well do so. But this we do not have, for a variety of reasons – none of which say anything good about us as a species.

The reasons the system is failing are many. But as a species we cling to simple narratives to try and make sense of chaos and pain. It was clear that some in the audience (and cast!) clung to that narrative that its the ‘fault’ of the social workers – their arrogant language that they made the ‘decisions’ rather than recommendations to the court. And social workers don’t help themselves by this constant refrain that ‘we are child focused’. A child doesn’t exist in isolation from his family. A system that leaves the parents behind is cruel and ineffective. As the parents go on having children.

But. As the real life Team Manager said ‘We have to make the decisions that no one else wants to make’.

I think there is a real risk that social workers are being blamed for each and every social ill that has led us here. The saddest comment of all, for me, was to here the Team Manager talk about the difficulties of working with people from other agencies – the lack of time, the lack of trust.

And this chimes with my fundamental concern. Most people, most of the time appear to be on broadcast mode only. To open up space in their heads for real thought, to challenge their dearly held narratives is hard. Not many people seem able or willing to do it. I hope that events such as these do push at the door for some. Without a willingness from all concerned to be honest about what is happening, the situation can only get worse. But already it is quite beyond the efforts of any one group to change.

However, whatever my fears and cynicism – which certainly I also have to be open to challenge – at least 150 people traveled on a cold winters evening to participate with enthusiasm in a pretty unique piece of theatre. It is no small thing that a serving member of the judiciary has taken this step and is trying to do something to make us remember – there is no ‘them’. There is only ‘us’.

If you tolerate this – then your children will be next

This is a post by Sarah Phillimore.

The end of safeguarding for children?

Young children do not have capacity to make decisions

A child is a person between the ages of 0-18. Older children may be considered ‘Gillick competent’ and able to make serious decisions about their welfare needs which may then override parental objections and give adult doctors etc the necessary lawful consent to treatment or other interventions etc.

A very broad approach is this. A child under 6 is vanishingly unlikely to have the capacity to make serious decisions. Children between 6-12 will vary in their ability to understand and weigh information. Children approaching their teenage years are likely to be ‘Gillick competent’ and able to give consent to medical treatment etc but even the wishes of a ‘Gillick competent child’ are not automatically held to be determinative of every case.

Parents have a legal obligation to protect the children in their care.

Parents have ‘parental responsibility’ for their children. This is set out at section 3 of the Children Act 1989

In this Act “parental responsibility” means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.

In Christian Institute v Lord Advocate [2016] UKSC 51; 2017 SC (UKSC) 29, paras 71 to 74, the Supreme Court recognised the responsibility of parents to bring up their children as they see fit, within limits, as an essential part of respect for family life in a western democracy.

A parent who fails to exercise parental responsibility for their child may find their children removed from their care by the State or even that they face criminal charges of cruelty or neglect. For example, The Children and Young Persons Act 1933 deals with ‘cruelty to a child under 16’

If any person who has attained the age of sixteen years and has responsibility for any child or young person under that age, wilfully assaults, ill-treats (whether physically or otherwise), neglects, abandons, or exposes him, or causes or procures him to be assaulted, ill-treated (whether physically or otherwise), neglected, abandoned, or exposed, in a manner likely to cause him unnecessary suffering or injury to health (whether the suffering or injury is of a physical or a psychological nature), that person shall be guilty of an offence, and shall be liable—

It therefore remains very surprising and alarming to see a constant stream of ‘advice’ and even court proceedings which appear to start from a very different basis entirely. That for one issue alone – that of ‘gender identity’ – a child of ANY AGE should be given the power to make decisions, this cannot be a safeguarding issue and any parent who stands in the way of this should find themselves the subject of legal censure.

If you are talking about children’s rights – which children do you mean?

The state of ‘childhood’ covers a very wide canvass. Children of 6 are not the same, on any level, as children of 16. I have written about this before. See:

No one, no issue is off the table when it comes to safeguarding – I discussed my alarm at a social worker suggesting that parents supporting a child around issues of gender identity was ‘not’ a safeguarding issue.

You had better make some noise; Abusers will eploit bad laws and poor safeguarding

So it was with enormous unease that I read about the latest comment on parental responsibility via issues of gender identity for children. Because this appears to be spearheaded by a major law firm, Dentons.

https://twitter.com/SVPhillimore/status/1200357520461762562?s=20

Roll on Friday reported on November 29th 2019 about the production of a document headed : ‘Only adults? Good practices in legal gender recognition for youth’. This purports to be a ‘report on the current state of laws and NGO advocacy in eight countries in Europe, with a focus on rights of young people’.

The authors of the report recognises with thanks whose who have contributed to it.

IGLYO and Thomson Reuters Foundation wish to extend their thanks and deep gratitude to the legal teams and activists who contributed their time and knowledge to create this report.

The report was prepared by Dentons Europe LLP with the assistance of Dentons UK and Middle East LLP, and the NextLaw Referral Network. Our special thanks to Dentons trainee lawyers Jennifer Sim, Anna Mackinnon and Madeleine Macphail and to the Dentons Europe Pro Bono Trainee, Margaux Merelle.

There is a disclaimer:

This report does not constitute legal advice and should not be relied on as such. Readers wishing to act upon any of the information contained in this report are urged to seek individual advice from qualified legal counsel in relation to their special circumstances.

This report does not necessarily reflect the personal views of any of the lawyers, staff or clients of Dentons, Thomson Reuters Foundation or other lawyers, law firms or organisations that contributed to the development of this report.

Regardless of such disclaimers. this report is clearly intended to be used as a significant lobbying tool with the aim of changing the law. That is the explicit aim of the report.

GLYO’s aim was to create user-friendly resource for itself, its members and the broader advocacy community for use in campaigning efforts for better gender recognition laws across countries in the Council of Europe.

The report wishes to eliminate protections for children based on their age and understanding.

I went through the report to see what mention was made of children by age. There is no attempt to distinguish between the preschool child or the teenager. This is not surprising when you come to page 15 which calls to end the legal minimum age requirement.

Eliminate the minimum age requirement.

Where legal recognition procedures require prior medical treatment or investigation, these are often only available at the legal age of maturity and thus discriminate based on the age of the applicant. In other cases, where there is no medical requirement, minors are barred from legal recognition unless they have parental authorization. This remains a huge hurdle for young trans people who are yet to reach the age of maturity.

See also Page 9: Children and teenagers need to be allowed to define themselves however it suits them, both in social and legal terms

Page 13: The best interests of the child should be a primary consideration in legal procedures, and the child’s view should be given proper weight, taking into account their individual maturity and development. A child’s best interests must include respect for the child’s right to express their views freely and due weight given to said views in all matters affecting the child. In practice this would mean, for example, that a statement from a public authority suggesting that children of a certain age are too young to be aware of their identity is contradictory to the “best interest” principle and the right to be heard. 

There is no doubt that the authors of this report see protections for children based on their age and understanding, do not apply when it comes to the issue of gender identity.

I can find no understanding or assessment of the impact this has on the legal and moral obligations of parents to protect their children, apart from a few vague references to the welfare of children. I can see no mention of the Article 8 rights to respect for family life.

The report wishes to punish parents who want to take responsibility to protect their children

Not only does this document appear to be ignorant of or uncaring about the young child’s lack of capacity to make serious decisions about their physical or mental health, there is even a call for parents to be punished if they do not accede to the demands made by their child – regardless of age or understanding – see page 14.

For example, states should take action against parents who are obstructing the free development of a young trans person’s identity in refusing to give parental authorization when required.

This is confusing, particularly when Norway – a country lauded for its progressive approach – sets out clearly the age restrictions considered important.

Norway is the most liberal, with legal gender recognition being available at any age, although with certain conditions for different age groups. For example, minors under the age of 6 can only have their legal gender altered if they are intersex. For minors between 6 and 16, it is available with parental consent, and for those over 16 a self-determination model operates. In contrast, in Belgium, legal gender recognition is unavailable for minors under the age 16, and for those between 16 and 18 years old parental consent is required.

Do the authors of this report agree there is a distinction between a 6 year old and a 16 year old? I am not sure they do. Rather, this distinction becomes irrelevant as their work is ‘to educate the public that legal gender recognition is a purely civil process’.

This is probably the most dangerous fudging of reality of all. The main reason many share my fears about removal of any age limits when considering transition is that the current model of engagement in the UK is ‘affirmation’ only – and a child set along a pathway of puberty blockers, cross sex hormones and surgery. These issues and the frightening lack of clear understanding about what is motivating every increasing numbers of children to want to change sex were recently investigated by Newsnight and File on Four, when looking at those who now wish to ‘detransition’.

What does it say when you want to keep your arguments hidden?

The report is clear that those campaigning must ‘fly under the radar’ to avoid uncomfortable scrutiny:

The most important lesson from the Irish experience is arguably that trans advocates can possibly be much more strategic by trying to pass legislation “under the radar” by latching trans rights legislation onto more popular legal reforms (e.g. marriage equality), rather taking more combative, public facing, approaches. 

Advice is given about activism ‘behind the scenes’:

Another technique which has been used to great effect is the limitation of press coverage and exposure. In certain countries, like the UK, information on legal gender recognition reforms has been misinterpreted in the mainstream media, and opposition has arisen as a result.

What of any benefit is done in the dark? This says to me loud and clear that the authors of this report know that what they are recommending cannot stand up to scrutiny. It says to me that they risk being motivated by something other than the welfare of the children they profess to be fighting for. When you bring in slick professionalism from law firms and others motivated by profit, it rings some very, very loud alarm bells for me.

Always ask yourself – who stands to benefit from from any change to the law? If the people pushing this are seeking professional or financial validation, always be wary. If the people pushing it wish to ‘fly under the radar’ – always ask yourself why.

There are clear parallels between the recommendations of this group and how cults and predators operate. Those who are to be successfully recruited into the cult must be isolated from friends and family who do not share the cults aims and beliefs.

Unless and until there is a significant body of evidence that the ‘affirmation’ model is one that operates in the best interests of children, we should all be extremely wary and worried about this.

And parents should continue to take responsibility for their children and protect them from making potentially harmful decisions with life long consequences – regardless of what is threatened by lobby groups who do not appear to know or care about the law.

Further reading

https://twitter.com/LindaL16/status/1203001207301771265?s=20

Working with young people questioning their gender? Ditch the label and understand the child’s world CAFCASS website March 2018 Anthony Douglas CEO – fails to distinguish between Gillick competent and non Gillick competent children and contains alarming phrase We have to understand whether we should support a fast track transition, which can for example mean we recommend immediate use of hormone blockers so that transitioning does not become more complicated biologically if there is delay.

NHS staff being advised to ignore parents’ wishes if children self-declare as different gender, guidance shows The Telegraph January 2019

Dentons campaigns for kids to switch gender identity without parental approval Roll on Friday 29th November 2019

The document that reveals the remarkable tactics of trans lobbyists The Spectator December 2nd 2019