Author Archives: Sarah Phillimore

Vaccination of children; how does the Family Court handle disputes?

This is a post by Sarah Phillimore

This post considers how the court should deal with disputes between those who have parental responsibility, about whether or not a child should be vaccinated. Vaccines are routinely administered in England; see Public Health England’s guidance in ‘The Green Book: Information for public health professionals on immunisations’. Despite the routine nature of vaccination, there remains a significant minority of those who object, some fearing that vaccines cause harm. The Court of Appeal however has given a very clear ruling that there is no medical evidence to support an argument that these routine childhood vaccines are harmful, and that local authorities do not need to seek the approval of the High Court before agreeing to vaccinate children in their care.

In February 2020 there was a decision in care proceedings about parents who objected to their child being vaccinated, which can be found at  [2020] EWHC 220 (Fam). The Judge commented that the father was “driven by the fundamental belief that neither the court nor the State, through the arm of the Local Authority has any jurisdiction to take decisions in relation to his children”.

The Judge heard medical evidence about the benefits of immunisation in general and in particular with regard to the child before him. He found that vaccination should not be characterised as ‘medical treatment’ but rather ‘a facet of public preventative health care intending to protect both individual children and society more generally’.

The Judge was satisfied that the local authority could authorise the vaccination of the child under section 33(3) of the Children Act 1989. This is significant, as previous cases (see Re SL (Permission to Vaccinate) [2017] EWHC 125 ) had set out that this issue had to be decided using the ‘inherent jurisdiction’ of the court – a jurisdiction which can only be exercised by the High Court or by Circuit Judges with special authorisation. This has the potential to take more time and cost more money to get a decision.

Therefore the Judge felt it appropriate to allow his decision to be appealed pursuant to the Family Procedure Rules 30.3(7) – ‘contradictory decisions on the substantive issue’

By the time the matter got to the Court of Appeal, no one was arguing that the child should NOT be vaccinated but everyone wanted clarity about what route people needed to use in any future cases like this.

Judgment was handed down on 22nd May 2020 in H (A Child Parental Responsibility : Vaccination) [2020] EWCA Civ 664

Is vaccination a ‘grave and serious’ matter?

The Court of Appeal decided that in order to make the right decision about the route to take, it was necessary to consider some broader questions, and in particular whether or not vaccination is to be considered ‘a grave or serious matter’ or should be regarded as ‘medical treatment’.

These questions also had to be considered in two different contexts: ‘public law’ proceedings (where the local authority shares parental responsibility with the parents) and ‘private law’ proceedings (where only individuals such as the mother and father share PR).

As a general principle, the State should be slow to interfere with how parents exercise their rights and duties with regard to their children and respect their right to do so, provided that they don’t put the child at risk of significant harm.

Giving consent to having a child vaccinated is clearly an exercise of parental responsibility. Most consider the decision to vaccinate ‘reasonable and responsible’. However it is not a legal requirement. Therefore a refusal to vaccinate your child and nothing else would be very unlikely to be considered ‘significant harm’ to the extent that the State could interfere and apply for a care order under section 31(3) of the Children Act.

The child in the care of the local authority

The starting point for a child in local authority care is section 33 of the Children Act 1989. This gives the LA parental responsibility alongside the parents and the power to ‘override’ the parents provided that what it proposes is necessary to safeguard the welfare of the child. The LA cannot however change a child’s religion or name, or take the child out of the country using this section.

This applies to ‘interim’ and ‘final’ care orders. However, when decisions ‘with profound or enduring consequences’ needed to be made – such as serious medical treatment – the general view is that it was not right for the LA to use section 33 to override a parent’s wishes without further scrutiny – the matter needed to come before the High Court to be resolved.

So – is consenting to vaccination something that a LA can do without the High Court’s permission? Or is this ‘serious medical treatment’?

Medical evidence about the benefit of vaccines is clear

The Court of Appeal first examined the current established medical view – routine vaccination of children is not only in the best interests of the children but also the general public.

The Court of Appeal acknowledged that most – but not all – of the concerns about the safety of vaccinations relate to the MMR vaccination. This was introduced in 1988. Concerns arose that there was a link between the MMR vaccine and autism following the publication of a paper in The Lancet by Dr Andrew Wakefield. This attracted widespread publicity and caused a drastic reduction in MMR vaccination rates and corresponding increase in cases of measles. It then transpired that Dr Wakefield had not declared a number of conflicting interests and by 2004, 10 of the 12 co-authors of the 1998 paper had withdrawn their support for the claimed link with autism.

Dr Wakefield was then investigated by the General Medical Council for misconduct and in May 2010 he was struck off the medical register and The Lancet formally retracted his paper. No mainstream medical opinion now accepts a link between vaccination and autism.

The Court of Appeal accepted that the medical evidence:

overwhelmingly identifies the benefits to a child of being vaccinated as part of the public health initiative to drive down the incidence of serious childhood and other diseases.

The Court of Appeal were very clear that this short recitation of such historical events was necessary to ‘bring an end’ to the parade of expert witnesses in cases involving vaccination, to demonstrate its medical benefits, unless a child has ‘an unusual medical history’ – see for example in Re C and F (Children) [2003] EWHC 1376 (Fam).

There could be other issues than purely medical over vaccinations which impact on a child’s welfare – for example the parent’s religious belief – but the Court of Appeal have decisively put to bed any lingering doubts about the medical benefits of vaccination.

Regardless of benefit – are vaccines ‘serious medical treatment’?

Regardless of its medical benefit, were the parents right to say that only the High Court could resolve a dispute between parents and a local authority? There have sadly been very many cases where care proceedings and complex medical treatment intertwine and the High Court has been asked to intervene.

The most difficult and controversial cases have been where care proceedings were used to bring parents before the court over disputes about medical treatment where the parents are otherwise ‘unimpeachable’. The Court of Appeal did not approve of this. The more usual route in cases of dispute over serious medical treatment, is via the NHS Trust responsible for treating a child applying to invoke the court’s inherent jurisdiction. in such applications, there is no need to discuss threshold criteria or ‘blame’ the parents and the sole criterion is the welfare of the child.

The Court of Appeal acknowledged that some previous cases could be interpreted as denying that the LA had the power to authorise ANY medical treatment. But, if that was the correct interpretation – then those cases got it wrong.

The Court of Appeal then turned to examine how vaccination cases in particular had been dealt with by the courts. It was noted that in a previous case the hearing had lasted two weeks with extensive medical evidence and a judgment of 370 pages which concluded that it was in the best interests of the healthy children to be vaccinated. That decision was appealed and the appeal dismissed. See In Re C (Welfare of Child: Immunisation) [2003] EWCA Civ 1148; [2003] 2 FLR 1095) However, further cases continued to hear extensive expert evidence.

The Court of Appeal stated that by the 2010 at the very latest, there has been no evidential basis for suggesting a link between MMR and autism and other vaccines which are routinely given to children have not been subject to the same high profile concerns about their safety.

The Court of Appeal did not think it mattered to call vaccinations ‘medical treatment’ or ‘preventative health care’ – what mattered is whether vaccinations were ‘grave’ and ‘serious’ in the context of the exercise of PR by a local authority. This was soundly rejected:

I cannot agree that the giving of a vaccination is a grave issue (regardless of whether it is described as medical treatment or not). In my judgment it cannot be said that the vaccination of children under the UK public health programme is in itself a ‘grave’ issue in circumstances where there is no contra-indication in relation to the child in question and when the alleged link between MMR and autism has been definitively disproved. 

Cases involving disputes between parents

The route for parents who cannot agree about vaccination is to apply for a Specific Issue Order under section 8 of the Children Act 1989 – see Thorpe LJ in Re C (Immunisations) at paragraph [17] where in 2003 he expressed the view that immunisations were part of a ‘small group of important decisions’ where if those with PR could not agree, it should come before the court. The Court of Appeal wondered if now in 2020 this could still hold good given that all evidence unequivocally supports the recommendation of Public Health England that vaccinations benefit children and the wider society. However, the Court of Appeal declined to offer a definite view about this.

However, the reality is that if parents can’t agree in discussion or more formal mediation, neither has primacy over the other and they have no option but to come to court for resolution.

This is very different to the situation where a care order exists, as in that situation Parliament has given the LA the power to override a parent unless its a decision of such magnitude that it must come before the High Court.

Warning to local authorities

However, the Court of Appeal sounded a note of caution, warning the local authority that it must involve parents in decision making and section 33 CA 1989 was not an invitation to ‘ride rough shod’ over parents. If the parents do not agree with the the LA decision to consent to vaccination, they can make an application to invoke the inherent jurisdiction and apply for an injunction under the Human Rights Act 1998 to prevent vaccination before the matter comes before the court.

The Court of Appeal decision does not in any way diminish the importance of parental views where there is a real issue about what decision will promote a child’s welfare. However, the weight to be given any objection is not decided by how insistently it is made, but according to what substance it has.

The pressure on the family justice system is already serious enough without devoting weeks of High Court time to reinventing the vaccination wheel.

Case law and guidance on remote hearings

St Johns Chambers Family Forum May 14th 2020
Case law and guidance on remote hearings

See also this post for further links to commentary, case law and guidance


Sarah Phillimore

Introduction


Our ways of working, overnight changed dramatically. No one has ever faced this situation before.

As the Nuffield Family Justice Observatory reported on May 6th 2020 (and see their follow up report in September 2020)

In the two-week period between 23 March and 6 April 2020 audio hearings across all courts and tribunals in England and Wales (not only in family courts) increased by over 500%, and video hearings by 340%.

And of course there has been guidance upon guidance and guidance about guidance, which in different circumstances may have represented heaven for many lawyers as we argue about the precise meaning of this word in this context.

But I imagine that for most of us, this is a situation which is extremely stressful and even frightening – we are being asked to get to grips with brand new technology, worry about how our clients will participate and keep on top about how guidance is being interpreted in the courts.
So I am hopefully going to provide a useful aide memoire to the most significant recent guidance and cases and in so far as I can, extract some general principles to use as a starting point in your individual cases.

Always remembering of course that family cases even pre lockdown threw up an infinite variety of factual circumstances – case law is a guide and rarely ever the answer.

Summary of fundamental principles/checklist

THE ESSENTIAL QUESTION – how will you secure the overriding objective and compliance with Articles 8 and 6?

Your obligation is to act to process cases efficiently but justly. Often these two key principles are in direct tension.

You must assess the case in front of you. Guidance is not diktat or straight jacket. No one feature acts as a veto or a compulsion. Some cases are very well suited to remote hearings – short directions hearings for e.g. But the longer the time estimate and the more complicated the issues, the more important your assessment about whether or not fairness is being compromised.

If it helps, divide your assessment into stages.

The stages of your assessment


There will clearly be overlap between many categories but the ‘check list’ school of thought appears to guide against hasty and wrong decision making.

  1. Can the proceedings be conducted remotely? If ‘no’ matter ends there.
    a. Do the parents have access to necessary technology and a space to give evidence in private?
    b. Are there ‘hybrid’ arrangements that might work, i.e. some parties meeting in another location?
    c. Who is setting it up? On what platform? Can all access it? NB There is a real difference between a telephone and a video hearing – note para 35 CoA re B
    d. How will parents access the bundle?
    e. Will necessary assessments be completed in time? – see Government guidance on managing risks for social workers etc.
  2. Jurassic Park Principle: Should the proceedings be conducted remotely?
    a. Identify your ‘magnetic factor’: consider the factors in paragraph 9 of Re A (Children) (Remote Hearing: Care and Placement Orders [2020] EWCA Civ 583
    b. No one factor is a veto or compulsion – see para 11 in CoA re A and para 24 in Re Q. But if ALL the parties are against it, court will have to give cogent reasons to proceed – para 61 CoA re A.
    c. All cases involving children re urgent – but some are more urgent than others. Are there immediate safety risks for a child?
    d. What are the particular risks and benefits of an adjournment for the child?
  3. Plan effectively – If going ahead, what do you need on the ground?
    a. Ground rules in place to ensure effective participation and back up plans if technology fails for some or all.
    b. How are lay clients going to communicate with lawyers if not in the same room?
    c. Advocates meetings, pre-hearing discussions and focused case summaries
  4. And remember – inconsistency and uncertainty is inevitable in such changing times. See para 34 of re Q. There is no golden ‘right answer’ to be discovered. All you can do is show your workings and demonstrate that you have given sufficient thought to the relevant issues. Life can only be understood backwards – but it must be lived forwards.

Synopsis of guidance and case law – up to date as of 12th May 2020

This is not exhaustive. I may have missed something! But these seem to be the key cases and guidance.

19th March 2020
COVID 19 National guidance for the family courts

Over arching aim – ‘Keep Business Going Safely’
Situation will change rapidly – each case must be decided on case by case basis

23rd March 2020 (and updated)
‘The remote access family court’
Mr Justice MacDonald.
Quotes President:
Can I stress, however, that we must not lose sight of our primary purpose as a Family Justice system, which is to enable courts to deal with cases justly, having regard to the welfare issues involved [FPR 2010, r 1.1 ‘the overriding objective’], part of which is to ensure that parties are ‘on an equal footing’ [FPR 2010, r 1.2]. In pushing forward to achieve Remote Hearings, this must not be at the expense of a fair and just process.

9th April 2020
On 9 April 2020, the Lord Chief Justice, the Master of the Rolls and the President of the Family Division sent a message to all circuit judges and district judges concerning remote working during the ‘lockdown’ If all parties oppose a remotely conducted final hearing, this is a very powerful factor in not proceeding with a remote hearing; if parties agree, or appear to agree, to a remotely conducted final hearing, this should not necessarily be treated as the ‘green light’ to conduct a hearing in this way;
Where the final hearing is conducted on the basis of submissions only and no evidence, it could be conducted remotely;
Video/Skype hearings are likely to be more effective than telephone. Unless the case is an emergency, court staff should set up the remote hearing.
Parties should be told in plain terms at the start of the hearing that it is a court hearing and they must behave accordingly.
In Family Cases in particular:
Where the parents oppose the LA plan but the only witnesses to be called are the SW & CG, and the factual issues are limited, it could be conducted remotely;
Where only the expert medical witnesses are to be called to give evidence, it could be conducted remotely;
In all other cases where the parents and/or other lay witnesses etc are to be called, the case is unlikely to be suitable for remote hearing.

6th May 2020
Nuffield Family Justice Observatory Rapid review – a handy over view of what’s gone well and badly between with about 1K responses from judges, lawyers, parents and social workers.

Notes fundamental concerns of approx. 1,000 participants
• Difficulties arising from lack of face to face contact
• Difficulty in ensuring full participation in a remote hearing
• Concerns about lack of preparation for hearing
• Issues of confidentiality and privacy – particularly hard for parents in the same house as the children subject to proceedings and for professionals sharing home with family
• Concerns relating to the removal of new born babies
• Concerns about whether or not cases are adjourned – carries risk and benefit .
• Other factors relating to fairness – such as face to face assessments etc.
• Think about your platform – hostilities are less easy to mange over the phone
• Impact of remote hearings on health and wellbeing
• For some hearings, remote working provides greater efficiency

6th May 2020 Guidance for children’s social care services

[and see The Adoption and Children (Coronavirus) (Amendment) Regulations 2020 ]

It is for all those delivering or with an interest in children’s social care, including local authorities, social care trusts, those who have corporate parenting responsibilities, all adoption agencies, independent fostering agencies and children’s homes, and local safeguarding partnerships who work together to safeguard and promote the welfare of all children in their area. It is also for social workers, residential care providers and staff, and those with safeguarding responsibilities.
We expect that the sorts of circumstances where local authorities, local safeguarding partners and providers may want to make use of the additional flexibility that the secondary legislation amendments provide include:
• where staff shortages, due to sickness or other reasons, make it difficult or impossible to meet the original requirements
• where making use of flexibilities to take a different approach is the most sensible, risk-based response in light of other demands and pressures on services; this might involve focusing services on those most at risk
• where there is a consequential reason to make use of flexibilities, for example due to limited capacity in other providers or partners making it difficult or impossible to comply with the original requirements

Contact issues
We expect that contact between children in care and their birth relatives will continue. It is essential for children and families to remain in touch at this difficult time, and for many children, the consequences of not seeing relatives would be traumatising.
Contact arrangements should therefore be assessed on a case by case basis taking into account a range of factors, including the government’s social distancing guidance and the needs of the child. Where it may not be possible, or appropriate, for the usual face-to-face contact to happen at this time and keeping in touch will, for the most part, need to take place virtually. Where face-to-face contact is not possible, we would encourage social workers and other professionals to reassure children that this position is temporary and will be reviewed as soon as it is possible to do so.
We expect the spirit of any court-ordered contact in relation to children in care to be maintained and will look to social workers to determine how best to support those valuable family interactions based on the circumstances of each case.

CASE LAW

16th April 2020

Re P (A Child Remote Hearing)
[2020] EWFC 32

FACTS: Long running proceedings involving girl now aged 7 and allegations of FII. 15 day final hearing due.
Emphasises importance of primary purpose, to deal with cases justly – which requires parties to be on ‘equal footing’
President clear this case was NOT suitable for remote hearing. Magnetic factor was need for Judge to assess the mother – not just as she gave evidence but in her reaction to the evidence of others. (but note disagreement about forensic value to be attached to this in Re Q below)

COMMENTARY: Para 8. The ‘Jurassic Park principle’
Establishing that a hearing can be conducted remotely, does not in any way mean that the hearing must be conducted in that way.

Para 24 Each case is likely to involve a wide range of factors and some will be in tension


The need to maintain a hearing in order to avoid delay …is likely to be a most powerful consideration in many cases, but it may be at odds with the need for the very resolution of that issue to be undertaken in a thorough, forensically sound, fair, just and proportionate manner. The decision to proceed or not may not turn on the category of case or seriousness of the decision, but upon other factors that are idiosyncratic of the particular case itself, such as the local facilities, the available technology, the personalities and expectations of the key family members and, in these early days, the experience of the judge or magistrates in remote working.

30th April 2020

Re A (Children) (Remote Hearing: Care and Placement Orders)
[2020] EWCA Civ 583

FACTS: Case involving the youngest 4 of 6 siblings. The plan was for 2 to remain in long term foster care and for youngest two to be adopted. Judge determined that case was suitable for ‘hybrid’ final hearing in face of parents’ opposition. Appeal allowed and hearing fixed vacated.
Para 49 appeal succeeded on following basis
• Mr A’s inability to engage adequately with remote evidence (either at home or in the courtroom);
• The imbalance of procedure in requiring the parents, but no other party or advocate, to attend before the judge;
• The need for urgency was not sufficiently pressing to justify an immediate remote or hybrid final hearing.

COMMENTARY
‘Cardinal principles’
• The decision about holding a remote hearing is a case management one for the Judge
• Guidance is just that – guidance
• Guidance may have a temporary nature and circumstances will continue to develop

Para 11:

We wish to state with total clarity that our decision does not mean that there can be no remote final hearings on an application for a care order or a placement for adoption order. Neither is our decision to be taken as holding that there should be no ‘hybrid’ hearings, where one or more party physically attends at a courtroom in front of a judge. The appropriateness of proceeding with a particular form of hearing must be individually assessed, applying the principles and guidance indicated above to the unique circumstances of the case.

Magnetic factor here was ability of the father, as a result of his personality, intellect and diagnosis of dyslexia, to engage sufficiently in the process to render the hearing fair.

Para 9 – likely factors to influence decision

  1. The importance and nature of the issue to be determined; is the outcome that is sought an interim or final order?
  2. Whether there is a special need for urgency, or whether the decision could await a later hearing without causing significant disadvantage to the child or the other parties;
  3. Whether the parties are legally represented;
  4. The ability, or otherwise, of any lay party (particularly a parent or person with parental responsibility) to engage with and follow remote proceedings meaningfully. This factor will include access to and familiarity with the necessary technology, funding, intelligence/personality, language, ability to instruct their lawyers (both before and during the hearing), and other matters;
  5. Whether evidence is to be heard or whether the case will proceed on the basis of submissions only;
  6. The source of any evidence that is to be adduced and assimilated by the court. For example, whether the evidence is written or oral, given by a professional or lay witness, contested or uncontested, or factual or expert evidence;
  7. The scope and scale of the proposed hearing. How long is the hearing expected to last?
  8. The available technology; telephone or video, and if video, which platform is to be used. A telephone hearing is likely to be a less effective medium than using video;
  9. The experience and confidence of the court and those appearing before the court in the conduct of remote hearings using the proposed technology;
  10. Any safe (in terms of potential COVID 19 infection) alternatives that may be available for some or all of the participants to take part in the court hearing by physical attendance in a courtroom before the judge or magistrates.
    Para 61: Court endorsed LCJ’s message of 9 April at sub paragraph (a): ‘If all parties oppose a remotely conducted final hearing, this is a very powerful factor in not proceeding with a remote hearing’. Whilst in the present case it is true that the Children’s Guardian did not oppose proceeding with the planned hearing, all of the other parties, including the local authority, did. In such circumstances, when the applicant local authority itself does not support a remote contested final hearing, a court will require clear and cogent reasons for taking the contrary view and proceeding to hold one.

30th April 2020

[2020] EWCA Civ 584
Re B (Children) (Remote Hearing: Interim Care Order)

FACTS: A 9 year old boy was removed from his grandmother’s care and placed in foster care following a telephone hearing on 3rd April.
CoA agreed the order should not have been made and child returned to grandmother.

COMMENTARY – The problems here arose because the local authority changed its care plan in the middle of a remote hearing and because an application that was not urgent was treated as if it was. A hearing that had come about to regulate the position of his older sister took on a momentum of its own; the Recorder who made the wrong decision had, by the time he made it been working for over 10 hours remotely, and facing a stream of documents electronically.
The LA changed their care plan on the basis of recommendations from the Guardian who wrongly saw the situation as ‘urgent’ and had not carried out a balanced welfare analysis.

Para 34 – the remote hearing was part of the problem:

Our further observation is that, no doubt partly because of the exigencies of the remote process, there was a loss of perspective in relation to the need for an immediate decision about Sam. This was a classic case for an adjournment so that a considered decision could be taken about removal, if indeed that option was going to be pursued after reflection. An adjournment would have enabled the parties and the court to have all the necessary information. As it was, crucial information was lacking and its absence was overlooked by the court.

Para 35 – there is a real distinction between a telephone and a video hearing

There is a qualitative difference between a remote hearing conducted over the telephone and one undertaken via a video platform. If the application for an interim care order for Sam had been adjourned, it may well have been possible for the adjourned hearing to have been conducted over a video link and that single factor might, of itself, have justified an adjournment in a case which, in our view, plainly was not so urgent that it needed to be determined on 3 April

5th May 2020

[2020] EWHC 1086 (Fam)
A Local Authority
High Court

FACTS: Involved a 4 year old child whose sister had died at home and was later found to have suffered 65 fractures. Case had already been significantly delayed and child in foster care.
The court heard the medical evidence over 5 days then adjourned to consider if hearing should continue via Zoom to hear the lay parties. The father also sought an adjournment on grounds of mental health issues which were unrelated to the issue of remote hearings.

COMMENTARY: Judge referred extensively to Re P and CoA authorities. Did not share the President’s view about the importance of direct observation of lay witnesses:

Para 27: “…in my own view is that is not possible to say as a generality whether it is easier to tell whether a witness is telling the truth in court rather than remotely. It is clear from Re A that the Court of Appeal is not saying that all fact finding cases should be adjourned because fact finding is an exercise which it is not appropriate to undertake remotely. I agree with Leggatt LJ that demeanour will often not be a good guide to truthfulness. Some people are much better at lying than others and that will be no different whether they do so remotely or in court. Certainly, in court the demeanour of a witness, or anyone else in court, will often be more obvious to the judge, but that does not mean it will be more illuminating.”

Relied in factors in re A at [9] and determined that hearing should go ahead – but decision may have been different if parents were trying to follow proceedings only via a phone screen.

6th May 2020
Re Q
[2020] EWHC 1109 (Fam)

FACTS: Appeal against refusal to continue remote hearing with regard to a girl aged 6 who was subject of long running private law proceedings. Allegations of sexual abuse raised by M against F; clear finding that this did not happen and in March 2020 expert advised that child should move to live with F. The final hearing was set for April 22nd. The DDJ initially agreed it must continue but two days later reversed that decision after reading the decision in re P again and considering the very serious issues at stake in this hearing. The father appealed –it went before the President because of ‘perceived need’ to clarify the decision in Re P.

Appeal allowed and matter remitted to DDJ to determine how and when the hearing was to take place.

COMMENTARY: Para 24 Neither the guidance that has been issued, nor the decision in Re P, establish a veto to the holding of a remote hearing where a parent objects, or expert evidence is to be called.
The appeal succeeded not because of a failure to interpret re P correctly but because of a failure of process and error in approach re the welfare issue.
The Judge was concerned that the father had raised new issues in his position statement which might change the temperature of the final hearing – but had not raised this before counsel. Nor did the Judge explain why her welfare analysis shifted so starkly in only two days.

Para 34 – a degree of inconsistency and uncertainty is inevitable:
…each judge or magistrate must consider the individual case before the court and determine whether or not it should proceed remotely in whole or in part. It is to be accepted that a consequence of this approach is that different courts may take a different view on similar cases and that this may inevitably give rise to some inconsistency from court to court, or even from judge to judge.

Re D-S (Contact with Children in Care: Covid-19) [2020] EWCA Civ 1031

28th July 2020

This was a successful appeal against a decision of HHJ Lea to refuse a mother’s application for direct contact to her children (who were being cared for by the Local Authority) as the lockdown restrictions eased. Appeal allowed.


Useful article on how to identify risk of infection


Indoor spaces, with limited air exchange or recycled air and lots of people, are concerning from a transmission standpoint. We know that 60 people in a volleyball court-sized room (choir) results in massive infections. Same situation with the restaurant and the call center. Social distancing guidelines don’t hold in indoor spaces where you spend a lot of time, as people on the opposite side of the room were infected.
The principle is viral exposure over an extended period of time. In all these cases, people were exposed to the virus in the air for a prolonged period (hours). Even if they were 50 feet away (choir or call center), even a low dose of the virus in the air reaching them, over a sustained period, was enough to cause infection and in some cases, death.
Social distancing rules are really to protect you with brief exposures or outdoor exposures. In these situations there is not enough time to achieve the infectious viral load when you are standing 6 feet apart or where wind and the infinite outdoor space for viral dilution reduces viral load. The effects of sunlight, heat, and humidity on viral survival, all serve to minimize the risk to everyone when outside.
When assessing the risk of infection (via respiration) at the grocery store or mall, you need to consider the volume of the air space (very large), the number of people (restricted), how long people are spending in the store (workers – all day; customers – an hour). Taken together, for a person shopping: the low density, high air volume of the store, along with the restricted time you spend in the store, means that the opportunity to receive an infectious dose is low. But, for the store worker, the extended time they spend in the store provides a greater opportunity to receive the infectious dose and therefore the job becomes more risky.
Basically, as the work closures are loosened, and we start to venture out more, possibly even resuming in-office activities, you need to look at your environment and make judgments. How many people are here, how much airflow is there around me, and how long will I be in this environment. If you are in an open floorplan office, you really need critically assess the risk (volume, people, and airflow). If you are in a job that requires face-to-face talking or even worse, yelling, you need to assess the risk.
If you are sitting in a well ventilated space, with few people, the risk is low.
If I am outside, and I walk past someone, remember it is “dose and time” needed for infection. You would have to be in their airstream for 5+ minutes for a chance of infection. While joggers may be releasing more virus due to deep breathing, remember the exposure time is also less due to their speed.

While I have focused on respiratory exposure here, please don’t forget surfaces. Those infected respiratory droplets land somewhere. Wash your hands often and stop touching your face!

As we are allowed to move around our communities more freely and be in contact with more people in more places more regularly, the risks to ourselves and our family are significant. Even if you are gung-ho for reopening and resuming business as usual, do your part and wear a mask to reduce what you release into the environment. It will help everyone, including your own business.

Limits to Self Identification: The Protection of Children

This is a post by Sarah Phillimore.

I was interested to read the decision of Re S (Parental Alienation: Cult), a judgment handed down on April 29th 2020. It covers so much of what has been interesting and challenging for me throughout my career. The damage that even loving parents can do to their children, and the particular harm caused by a parent who puts their own right to self identification above the child’s welfare.

This is a case about a mother who was a member of a cult and a father who wanted their daughter to live with him because he was so worried about her exposure to the cult. His application was refused and the child’s time was divided between the parents; he appealed.

The first Judge to hear the case agreed that the mother was a member of a cult organisation founded in Australia in 1999 by Serge Benhayon, called ‘Universal Medicine’. The mother in turn cross appealed, denying she was a cult member and sought to reduce the amount of time the child spent with her father, relying on historic and repeated allegations that the father had sexually abused the child and he was coercive and controlling.

The father’s appeal ultimately succeeded.

The judgement offers a helpful analysis of the law relating to the weight to be accorded freedom of belief when that conflicts with a child’s welfare. I think it poses some interesting further questions about what areas courts ought to be investigating when faced with other parental systems of belief that are controversial or deny material reality – such as the growing insistence in some quarters that biological sex is a myth and to attribute it to a child is some kind of hateful bigotry.

The law concerning freedom of belief

The court first needed to examine the law concerning freedom of belief. The first Judge carefully surveyed the law’s treatment of sects, cults and minority groups in cases involving children. He recognised that the court had to approach this with caution: the court should not become unnecessarily involved with criticising minority groups and controversial beliefs. The court should only be concerned with the welfare of the child.

The leading decision around religious upbringing is Re G (Education: Religious Upbringing) [2012] EWCA Civ 1233; [2013] 1 FLR 677. This case involved the schooling of children from an ultra-orthodox Jewish background, but the comments of Munby LJ apply equally to belief systems that are not avowedly religious. The Judge is not there to weigh one religion against another and all are entitled to equal respect so long as they are ‘legally and socially acceptable’. The court must recognise Article 9 of the European Convention:

“1 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2 Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

From this, we can see the right to religious freedom is not absolute but qualified in two ways. Your religion or philosophy is protected only if worthy of respect in a democratic society and not incompatible with human dignity – see Campbell and Cosans v United Kingdom (No 2) (1982) 4 EHRR 293. Second, how you ‘manifest’ that religion or philosophy – such as in worship or other observance – can be restricted if necessary to protect the rights and freedoms of others.

It is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs; the State must be neutral and impartial – see  Moscow Branch of the Salvation Army v Russia (2007) 44 EHRR 46.

But if a religious practice or belief has negative consequences for a child’s welfare, the court has the power to restrict manifestations of that practice or belief – and in the most extreme cases, remove the child from the care of the parent who will not change their views.

In summary, the court must respect the mother’s beliefs to the extent that the teachings of Universal Medicine are worthy of respect in a democratic society, but the child’s welfare remains the paramount consideration and may override the mother’s rights.

The law concerning parental alienation

The Appeal Court then considered the law around parental alienation. The Court rejected any attempt to enter the debate about labels, agreeing with Sir Andrew McFarlane (see [2018] Fam Law 988) that where behaviour is abusive, protective action must be considered whether or not the behaviour arises from a syndrome or diagnosed condition. The Appeal Court relied upon the CAFCASS definition of alienation.

“When a child’s resistance/hostility towards one parent is not justified and is the result of psychological manipulation by the other parent.”

Such manipulation does not need to be deliberate or malicious. It is the process that matters, not the parent’s motive.

The Appeal Court commented:

Signs of alienation may include portraying the other parent in an unduly negative light to the child, suggesting that the other parent does not love the child, providing unnecessary reassurance to the child about time with the other parent, contacting the child excessively when with the other parent, and making unfounded allegations or insinuations, particularly of sexual abuse.

These cases can be very difficult but the courts are under a positive obligation imposed by Article 8 of the ECHR, to strive to find some resolution, particularly as the passage of time often leads to a determination of the matter by default, as a child simply hardens negative views towards the absent parent.

As McFarlane LJ said in Re A (Intractable Contact Dispute: Human Rights Violations) [2013] EWCA Civ 1104; [2014] 1 FLR 1185 at 53: 

The conduct of human relationships, particularly following the breakdown in the relationship between the parents of a child, are not readily conducive to organisation and dictat by court order; nor are they the responsibility of the courts or the judges. But, courts and judges do have a responsibility to utilise such substantive and procedural resources as are available to them to determine issues relating to children in a manner which affords paramount consideration to the welfare of those children and to do so in a manner, within the limits of the court’s powers, which is likely to be effective as opposed to ineffective.”

The courts have to keep the child’s medium to long term welfare in mind, as the temptation may well be to take the short term path of least resistance as less stressful for everyone. However the court must not wait for serious harm to be done before taking appropriate action.

The Facts

The parents separated in 2012 when the child was about a year old, so at the time of the appeal hearing, she was aged 9 years.

The father moved out but continued to spend time with his daughter on alternate weekends. About the same time as the separation the mother became a ‘student’ of ‘Universal Medicine’.

The Judge did not need to decide if this was a ‘religion’, but found it was a ‘belief system’ to which the mother was strongly aligned. The founder of this system, Serge Benhayon, was described by an expert on cults, the Rev Dr David Millikan, in this way:

Benhayon hovers over his followers with a myriad of pronouncements about how they should behave. His teachings, cloaked in the robes of sanctity, prescribe what food they can eat. He has strict rules on clothes, work, physical exercise, how to speak and move, how sex works (he encourages orgasms like a hermaphrodite), how to treat children, how to dispose of their money, what books to read, who to talk to, what media to read or watch, how to treat family and friends who complain about their discipleship. Piece by piece their lives are recast in the mode of Benhayon himself.”

As is common with cults, its members will lose the capacity to question what they are taught and will consider those outside the ‘closed system’ as unable to understand. Relationships with family or friends who aren’t in the cult becomes very difficult, or are severed entirely.

The father was particularly concerned by the attitude of the cult towards food, collecting information which showed what categories of food were allowed or disapproved of by Universal Medicine. The categories include “Fiery foods”, “Pranic foods” (said to hinder the flow of the light of the soul and the body, including all wheat and grain and dairy milk … ) and “Evil foods”.

Other concerning cult practices included “Esoteric ovary massage” which is said to offer women “a true healing to deconstruct the emotional inputs and blockages that may lay suppressed in the ovaries, consequence to the many experiences a woman has endured throughout her life that have had the effect to the relationship she holds with herself”. There is apparently no evidence in support of any of the cult’s practices which were ‘developed’ by the cult founder Benhayon, described as a ‘former bankrupt tennis coach from New South Wales’.

When his daughter was three, the father became increasingly concerned about her restricted diet and the influence of this cult upon the mother’s parenting. The local authority assessed and found a good relationship between mother and child. The social worker thought the mother’s ideas were somewhat ‘fixed’ but did not pose a safeguarding concern.

The father applied for a child arrangements order so that his daughter would share time equally between her parents and a specific issue order so that she would not have any further dealings with Universal Medicine.

The mother objected, and asserted that that Universal Medicine was not a cult but rather “an award-winning complementary healthcare organisation bringing many benefits to its adherents, herself included.”

“Serge provides the absolute reflection of integrity and truth,and of unwavering love for all in service untiringly andunceasingly… No greater role model have I ever met.”

CAFCASS reported in April 2017 and recommended that the child should not attend any Universal Medicine events until she was old enough to make informed choices, reporting concern that the child would become segregated and that would impact on her formation of relationships.

The parents were able to agree shared care and the mother was prohibited from taking the child to UM events before she was 16, imposing any teachings or doctrines or initiating discussions about UM.

By July 2018 the father was concerned that the mother was not sticking to this agreement and in fact the influence of UM over their child had increased.

In October 2018 an Australian court [Benhayon v Rockett (No 8) 2019 NSWSC 169] found that Universal Medicine was a socially harmful cult and Benhayon to be a sexually predatory charlatan who had assaulted female students and had an indecent interest in children as young as ten.

The father therefore issued his application for his daughter to come and live with him and have no further involvement with the cult. The father set out a schedule of allegations against the mother. In May 2019 the court refused the father’s application for a psychological assessment of the child but ordered a report from an Independent Social Worker. The matter was listed for a three day final hearing in November 2019.

The father said that he did not trust the mother to distance herself from Universal Medicine and although their daughter would be devastated to spend less time with her mother, to remove her from the mother’s care would be the lesser of two evils.

The mother rejected the father’s criticisms of Universal Medicine and alleged he was coercive and controlling. The Independent Social Worker found that the mother’s involvement was harmful to the child, in terms of restricted diet, behaviour and beliefs. She recommended that the child live with her father and have supervised contact with her mother.

The mother then changed her legal team and instructed her new lawyer to strike out the father’s application altogether on the grounds that any transfer of residence would breach the mother’s Article 8, 9 and 10 rights. This application was dismissed and the matter continued to trial. The mother asserted that the Australian judgment was nothing to do with her and it was discriminatory to require the child to give up her ‘thoughts and conscience’.

The Judge’s Decision and the Appeal

The Judge rejected any allegation that the father was coercive or controlling. He was motivated by concern for his child’s welfare. He thought the mother seemed genuine in her agreement to dissociate herself from Universal Medicine if it meant her daughter would stay with her.

Both parents loved their daughter and could meet her practical needs. The Judge concluded that the order which would best meet the child’s welfare was a return to the arrangements in 2017, after weighing up the harm presented by Universal Medicine against the distress that the child would feel if spending less time with her mother. The court was persuaded that the mother was ‘sincere and genuine’ in her assertions that she would ‘modify’ her thinking about Universal Medicine.

The father appealed, on the basis that the Judge had given inadequate reasons for not following the recommendations of the ISW and that by January 2020 it was clear that the mother was backtracking from her undertakings and that the child arrangements order had already been wholly disrupted.

The mother responded to seek a reduction of the father’s time with the child, on the basis that historic allegations of sexual abuse had not been properly investigated and that the mother could not be asked to give up her her beliefs.

The Court of Appeal rejected the mother’s cross appeal and found that the Judge had been entirely correct in his evaluation of the facts and that Universal Medicine was a harmful cult. What was at issue here was his evaluation of how this applied to the child’s welfare and what orders should be made. It was clear that the mother was not going to stick to her undertakings. She had raised issues of sexual impropriety against the father since 2015. This supported the father’s case about parental alienation but had not been considered by the Judge.

The court therefore decided to give the mother one last chance to demonstrate that she would reject any adherence to the cult, failing which the child would move to live with her father. The final hearing was listed for July 2020.

EDIT On 15th July 2020 the court decided that the child should move immediately to her father’s care, as the mother was not able to show that she had made the necessary break with the cult. See Re S (Parental Alienation: Cult: Transfer of Primary Care) [2020] EWHC 1940 (Fam)

Conclusion

This case is a fascinating example of parental alienation but also a very useful examination and summary of the authorities relating to freedom of religious or philosophical belief and how rights can exist in serious tension with one another.

The mother has a right to religious freedom. But equally her daughter has a right to a healthy diet, to grow up to make her own choices and to have a relationship with her father. The court found that the child’s right to be free of a ‘harmful and sinister’ cult outweighed the mother’s right to continued adherence to it. However the mother would be given one last and short chance to show she could break away from the cult and promote her child’s welfare.

I wonder what parallels can be drawn between this case and the continuing debate about ‘transgender children’. Is there really much distinction between a harmful cult that puts food into categories (including ‘evil’) and promotes ‘esoteric ovary massage’ and a belief system that holds that biological sex does not exist but rather we can chose from infinite ‘genders’?

Both are products of adult minds. Neither have any foundations in fact. Both, if imposed on children from a young age have the potential to do harm. The welfare of the child remains the paramount consideration and that will require clear, honest and thorough weighing of a variety of factors in every such case.

Further reading

In whose best interests? Transgender Children: Choices and Consequences

No one, no issue is off the table when it comes to safeguarding

You had better make some noise – abusers will exploit bad laws and poor safeguarding

Remote hearings and the impact for family justice

This is a post by Sarah Phillimore. The Nuffield consultation is open until April 28th 2020, so please comment.

At the time of writing – April 17th – the UK is in its 3rd week of ‘lockdown’ in response to the global pandemic and efforts to reduce the spread of COVID 19. Courts have been operating remotely for a number of weeks now and some of the initial problems and panic have been ironed out. However, there are still some worries, in particular how this is impacting on lay clients. Many parents in care proceedings already face serious disadvantages in terms of ready access to technology or even a quiet and safe space in which to sit to engage in a remote hearing.

This is an issue of significance and importance – Tortoise Media organised a digital ‘ThinkIn’ for the Nuffield Family Justice Observatory.

Polly Curtis of Tortoise commented

Under lockdown there has been an 800% increase in court hearings being conducted by telephone or video call. The Nuffield Family Justice Observatory has been asked by the President of the Family Division to conduct a rapid consultation on the use of remote hearings in the family courts to inform future guidance. Join us to share your experiences: What has worked well? Do you have concerns? What improvements could be made?

What has worked well?

My experience is still quite limited; I have done a number of directions hearings where everything was more or less agreed; I haven’t yet cross examined anyone as the contested hearings lined up in my diary have fallen away. But for those hearings where the issues were limited and well known, where there wasn’t a need to put questions to a lay witness or navigate a massive bundle, it seemed to go ok. It was great not to have to travel hours to and from court for a 20 minute hearing, and the platforms I have used – Zoom and Skype for business – appeared to work reasonably well, apart from one complete and inexplicable failure of my microphone (and yes, I HAD unmuted).

Do you have concerns?

Yes. Although I haven’t yet conducted a contested hearing remotely, my experiences so far make me doubtful that its going to be as easy or as straightforward as some make out.

The significant problem in many family cases is going to be the inherent vulnerability of the lay clients. When meeting in person in court, we can talk, I can reassure, I can explain, I can see or be told immediately if my client is getting distressed or needs a break. All of this is gone with remote working. During one hearing I was taking client’s instructions via What’s App while trying to listen to the submissions of my opponents and formulate my own response. Yes, this is what happens in court hearings that are not remote – an important skill as a trial lawyer is being able to deal with client’s scribbled or whispered instructions while trying to follow the arguments of your opponent.

But there was something very draining about the remote experience that made it ten times more exhausting. That particular hearing lasted no more than 2 hours. I felt afterwards as if I had an entire day in court. I don’t yet know if this is because I am new to the experience and finding it stressful or whether a remote hearing does strip away some essential elements of good communication and that this extra effort will remain a feature of such work.

What improvements could be made?

Bizarrely, I thought I would be most concerned about technology and its availability, but my three week immersion in this new world has flagged up other difficulties I had not anticipated. From my experience what I would like to see most urgently is an end to the almost incessant flow of ‘guidance’ or comments about ‘guidance’. I appreciate that everyone is doing their best and this is for some people a way to cope with uncertainty. I also hope its an inevitable product of this brand new and very rapid change to all our circumstances.

But its oppressive, its confusing and instead of making sure that it directs people to consider what is important, I think it risks having the opposite effect – the more people expect ‘guidance’ to give them the answers, the less they tend to think about the case in front of them.

I think we need to keep first principles in mind

  • The child’s welfare is paramount
  • Delay should only be permitted if planned and purposeful BUT
  • Hearings must be fair – and there is often a lot to unpack in that one

I am supported in this analysis by para 24 of the President’s judgment in P – see link below in Further Reading

The decision whether to hold a remote hearing in a contested case involving the welfare of a child is a particularly difficult one for a court to resolve. A range of factors are likely to be in play, each potentially compelling but also potentially at odds with each other. The need to maintain a hearing in order to avoid delay and to resolve issues for a child in order for her life to move forward is likely to be a most powerful consideration in many cases, but it may be at odds with the need for the very resolution of that issue to be undertaken in a thorough, forensically sound, fair, just and proportionate manner. The decision to proceed or not may not turn on the category of case or seriousness of the decision, but upon other factors that are idiosyncratic of the particular case itself, such as the local facilities, the available technology, the personalities and expectations of the key family members and, in these early days, the experience of the judge or magistrates in remote working. It is because no two cases may be the same that the decision on remote hearings has been left to the individual judge in each case, rather than making it the subject of binding national guidance.

There is often tension between all those principles But every family case offers a huge array of different circumstances which need to be weighed and considered. One final hearing of mine was adjourned for a variety of reasons, not all to do with the remoteness of the hearing – but it was clear that remoteness weighed more heavily on considerations about the parent’s need for assistance to understand and participate in the proceedings. While hearings remain remote we need to be focused much more clearly on the impact of this on the lay client and whether they can participate in a meaningful way.

The Guidance from MacDonald J (see further reading below) is detailed and impressive and begins with the reminder from the President of the Family Division that we must not lose sight of the ‘primary purpose’ of the family court – to deal with cases justly. The Guidance offers a particularly pertinent example of a Court of Protection case that the Judge, journalists and lawyers all felt went very well indeed – but the lay person had a very different experience.

It all, in the end, comes down to what we think our courts are for. If the aim is to get the slickest and most efficient system up and running, then remote working offers a lot of advantages. But I hope most would agree that process should not be elevated above the people who must suffer that process.

It will be interesting to see how the Digital Courts develop when (if) we are ever out of lockdown. I can see ways that technology can be used to great effect and one positive at least from all of this is we will have speeded up immensely our willingness to embrace remote working.

Further reading

Advice on mechanics of remote hearings

Government advice on how to join remote hearings

Guidance from MacDonald J – 5th version 26 June 2020

Advocacy Guidance from the Council of the Inns of Court

Remote family hearings – guidance from 15th April 2020

Commentary

Remote hearings: a gulf between lawyers and lay parties? The Transparency Project March 29th 2020

Remote Hearings Guidance Note The Transparency Project June 7th 2020

The Family Court and Covid 19: The Road Ahead Guidance from the President on June 9th 2020.

Case law

P (A Child: Remote Hearing), Re (Rev 2) [2020] EWFC 32 (16 April 2020) 

Re A (Children) (Remote Hearing: Care and Placement Orders) 2020

C (Children : Covid-19: Representation) [2020] EWCA Civ 734 (10 June 2020)

Summary of case law up to end of May 2020 – Child Protection Resource

MUNCIPIO DE MARIANA & ORS v (1) BHP GROUP PLC (FORMERLY BHP BILLITON) (7) BHP GROUP LTD (Second to Sixth Defendants not party to the proceedings) (2020)

[2020] EWHC 928 (TCC)
QBD (TCC) (Judge Eyre QC) 20/04/2020
CIVIL PROCEDURE
ADJOURNMENT : CORONAVIRUS : DISPUTING THE COURT’S JURISDICTION : EXTENSIONS OF TIME : REMOTE ATTENDANCE : TECHNOLOGY
The court gave guidance on the approach to applications for an adjournment and applications for extensions of time due to the Covid-19 pandemic.
The first and seventh defendants applied for an extension of time, due to the effect of the Covid-19 pandemic, for service of evidence in respect of the claimants’ application to stay the proceedings on jurisdictional grounds.

The proceedings arose out of the collapse of a dam in Brazil which had released large quantities of toxic materials and contaminated water. There were over 200,000 claimants and the claims were made under Brazilian law. Other proceedings had been commenced in Brazil and a foundation had been established to provide compensation on a non-litigious basis. An application by the first defendant English company and the seventh defendant Australian company challenging the English court’s jurisdiction, and for the claims to be struck out or stayed, was listed to be heard in June 2020. Both sides had served expert reports with substantial exhibits. The defendants applied to extend time for service of their reply to the claimants’ evidence by five or six weeks because of the practical difficulties caused by the Covid-19 pandemic. If an extension was granted the hearing of the jurisdiction challenge would need to be vacated.

HELD: Approach to applications to adjourn hearings because of Covid-19 – The starting point was the overriding objective with the requirements that: cases were to be dealt with justly; in ways which were proportionate to the amounts involved, the importance of the case and the complexity of the issues; expeditiously and fairly. Regard was also to be had to PD 51 ZA para.4, which required the court to take into account the impact of the Covid-19 pandemic so far as compatible with the proper administration of justice. In the light of authorities since the start of the pandemic, the following principles governed whether a particular hearing should be adjourned if the case could not be heard face-to-face or whether instead there should be a remote hearing, National Bank of Kazakhstan v Bank of New York Mellon, Re Smith Technologies 26 March 2020 and One Blackfriars Ltd (In Liquidation), Re [2020] EWHC 845 (Ch) applied.

(i) Regard was to be had to the importance of the continued administration of justice. Justice delayed was justice denied even when the delay resulted from a response to the prevailing circumstances.

(ii) There was to be a recognition of the extent to which disputes could in fact be resolved fairly by way of remote hearings.

(iii) The courts had to be prepared to hold remote hearings in circumstances where it would have been inconceivable only weeks earlier.

(iv) There was to be rigorous examination of the possibility of a remote hearing, and of the ways in which such a hearing could be achieved consistent with justice, before the court should accept that a just determination could not be achieved in such a hearing.

(v) Whether there could be a fair resolution by way of a remote hearing would be case-specific. A multiplicity of factors would come into play and the issue of whether and to what extent live evidence and cross-examination would be necessary was likely to be important in many cases. There would be cases where the court could not be satisfied that a fair resolution could be achieved by way of a remote hearing.

(see paras 16-17, 24 of judgment).

Approach to applications for extensions of time because of Covid-19 –

(i) The objective if it was achievable was to keep to existing deadlines and where that was not realistically possible to permit the minimum extension of time which was realistically practicable. The prompt administration of justice and compliance with court orders remained of great importance even in circumstances of a pandemic.

(ii) The court could expect legal professionals to make appropriate use of modern technology.

(iii) The court could expect and require from lawyers a degree of readiness to put up with inconveniences; to use imaginative and innovative methods of working; and to acquire the new skills needed for the effective use of remote technology.

(iv) The approach required of lawyers could also be expected from professional expert witnesses. However, rather different considerations were likely to apply where the persons who would need to take particular measures were private individuals falling outside those categories.

(v) The court should be willing to accept less polished evidence and other material.

(vii) However, the court had to take account of the realities of the position and while requiring lawyers and other professionals to press forward care had to be taken to avoid requiring compliance with deadlines which were not achievable even with proper effort.

(viii) The court had to have regard to the consequences of the restrictions on movement and the steps by way of working from home which had been taken to address the pandemic.

(ix) Those factors were to be considered against the general position that an extension of time which required the loss of a trial date had much more significance and would be granted much less readily than an extension of time which did not have that effect.

(para.32).

Application to the facts – The defendants had shown that even when all proper allowance was made for the use of technology and extra efforts, the exercise of preparing the reply evidence would take significantly longer than was provided for in the timetable. Justice required that the defendants be given an extension of time of five to six weeks. The jurisdiction challenge hearing would be relisted for July 2020 (paras 42, 48).

Application granted
Counsel:
For the claimants: Nicholas Harrison, Jonathan McDonagh
For the defendants: Charles Gibson QC, Nicholas Sloboda, Veena Srirangam

Solicitors:
For the claimants: SPG Law
For the defendants: Slaughter and May
LTL 21/4/2020 : [2020] 4 WLUK 180
Official – 17 pages
AC5011101

Journalists in family courts – what can they report and can you keep them out?

This is a post by Sarah Phillimore

I have written generally on the issue of media reporting from family cases and also of my growing disenchantment with the ability or even the will of many journalists to report fairly and accurately, even with the information right in front of them. I had always naively thought that journalists investigated what was actually happening and reported on that – but that naivety cannot survive the reality that too many now appear to approach the family justice system looking for facts to fit a pre-determined theory.

Andrew Norfolk’s ‘Muslim Foster Carer’ report was one of the more serious examples of journalistic failure in this regard, but there are sadly many others.

However, regardless of what opinion I hold of journalists, its clear that the issue of greater transparency in the family courts and what can be reported about what happens there, is not going away; and nor should it. It is right that we are able as a society to understand the mechanisms of such an important element of it. I agree that people and organisations that go unchallenged have serious potential to fall into some very bad habits indeed.

I do however remain uneasy that the present push to simply make more information available is not the way to go about it; not without some greater reassurance that those trusted with the information will use it to inform debate rather than stoke up the fires of their own particular prejudice. Because the huge problem with this is that they want to use actual, identifiable families and children as their kindling.

We have to be willing to weigh the rights of parents and children to keep their painful private histories private, as against the rights of journalists or bloggers to promote any particular campaign.

So I am going to look in particular at the procedural mechanics of how journalists or legal bloggers may be involved in family proceedings and what you should do if you object to them reporting on your case or even attending your case at all.

At the time of writing (March 30th 2020) the UK is in its second week of ‘lock down’ during the COVID 19 global pandemic so the situation is of course made even more complicated by the prospect of remote court hearings via telephone or video link. Hopefully this situation will resolve in time.

The right of journalists and bloggers to attend court – yes they can.

This is hopefully now NOT controversial. Journalists and legal bloggers have a right to come into a family court. Rule 27.11 of the Family Procedure Rules 2010 allows ‘accredited journalists’ – those holding a UK Press Card – to attend private family hearings. Since October 2018, this rule extends to cover ‘legal bloggers’.

FPR 27 refers to “duly accredited representatives of news gathering and reporting organisations” – I shall use the shorthand term ‘journalist’ throughout.

However, the right to attend hearings does not confer a right to report on proceedings or publish details of proceedings. There is a clear tension between the right of journalists to report about court hearings and the right of the parties – particularly children – to keep probably very sensitive and upsetting material out of the public domain.

See section 12(1) of the Administration of Justice Act 1960 and Children Act 1989, s 97(2). These Acts provide exceptions to the general principle in favour of open justice. The court may also relax or restrict reporting restrictions in appropriate cases using its inherent jurisdiction. These matters are all covered in more detail here.

The guidance of the President of the Family Division, issued on 3rd October 2019, sets out the relevant legal and procedural considerations for the court, where issues arise about extending or limited what can be reported in a family case. As a matter of substantive law, the court will have to carry out a ‘balancing exercise’, with an ‘intense focus’ on the likely competing rights before it. These will probably involve (but are not restricted to) consideration of ECHR Articles 6, 8 and 10 – the right to a fair trial, right to privacy and right to freedom of expression.

The President’s guidance refers to a useful summary of required balancing exercise as set out at paragraph 22 of Re J (A Child) [2013] EWHC 2694 (Fam).

The best interests of any child involved in the proceedings are not ‘paramount’ in this argument, but will be the court’s primary consideration.

If no agreement can be reached, the court should hear submissions and replies, and give a judgment on the application. This doesn’t have to be a ‘full’ judgment but it must contain enough information to allow the parties to understand how the Judge got to his or her conclusions. See Re W [2014] EWCA Civ 1303 at para [49].

I don’t want journalists to report about my hearing. What can I do?

There is a presumption that journalists may attend family court hearings but still clear and significant limitations on what they can report and what documents they can see.

The court has even wider powers – it can exclude journalists from all of part of any hearing entirely – see FPR r 27.11(3). At any stage of the proceedings the court can decide not to allow journalists or other reporters to attend a hearing or part of a hearing if the following test of necessity is met:

  • in the interests of any child concerned in, or connected with, the proceedings;
  • for the safety or protection of a party, a witness in the proceedings, or a person connected with such a party or witness; or
  • for the orderly conduct of the proceedings; or
  • justice will otherwise be impeded or prejudiced.

The court can make this decision on its own initiative or after representations by any party, witness, child’s guardian or the child, if of sufficient age and understanding.

What is key however, is that the court must give an opportunity to any member of the press who is present an opportunity to make representations.

So if the journalists have turned up at the hearing, it seems pretty straightforward. You can make your application then and there and everyone is present to hear what is said and respond to it.

However, more significant problems arise if you want to make an application before any hearing has taken place.

But what if I want to exclude journalists before the hearing starts?

Applying to exclude all and any representatives of media organisations is clearly a serious thing and you will need to make that people who want to object, have a proper opportunity to do so. We now need to examine the procedural issues, rather than those of of substantive law and proportionality.

You will need to think carefully about this. Attempting to exclude the press may in fact just alert journalists to your case who otherwise would not have known about it. But if you consider press interest is inevitable and would be harmful, you may need to make an application in advance of the hearing. The Practice Direction 12 I comments that journalists are used to weighing up information in a short period of time so there may be more leeway for less notice to be given – but unless its an emergency you will need to make your application in sufficient time before the hearing.

The President’s Guidance sets out a summary of what you need to do at para 6:

Guidance as to the procedure for applying for RRO’s [Reporting Restrictions Orders] in the Family Division founded upon ECHR Convention rights can be found within FPR 2010, PD 12I and a CAFCASS Practice Note: ‘Applications for Reporting Restrictions Orders’(as updated in 2015). The application must be made in the High Court and notice must be given to the press through the Press Association (‘PA’) Injunction Alert Service [Human Rights Act 1998, s 12(2)].

Section 12 of the HRA is important as it sets out that an injunction restricting the exercise of the right to freedom of expression must not be granted where the person against whom the application is made is neither present nor represented unless the Court is satisfied (a) that the applicant has taken all practical steps to notify the respondent or (b) that there are compelling reasons why the respondent should not be notified.

It is possibly to get an injunction ‘without notice’ but it is clear that the circumstances must be ‘exceptional’ when one is attempting to restrict an Article 10 right. For further discussion see  Re X (A Child) (Residence and Contact) ([2009] EWHC 1728 (Fam)).

What is the Press Association Injunction Alert Service?

The Media Lawyer website explains

This service may be used to notify the subscribing media organisations of your intention to apply to the High Court for an injunction which will affect their rights under Article 10 by prohibiting or restricting reporting.

Nearly all the national media organisations have agreed to take part in the notification system.

The notification system

The purpose of the notification system is to provide a simple secure and verifiable method of sending national media organisations notice of proposed applications for injunctions, together with supporting documentation.

The notification system serves all the national media (newspapers and broadcasters) with the exception of the Financial Times and Sky News. If notice has to be served on these two companies it needs to be served on them directly. A list of those companies subscribing to this system and their contact details are at Media Organisations.

Nor does the CopyDirect service extend to local or regional media or magazines. The Practice Note (see below) states: If service of the application on any specific organisation or person not covered is required it should be effected directly. However this note does not expand on how such service is to be effective or what it means by ‘required’.

There is useful discussion from the then President of the Family Division in Re P (Enforced Caesarean: Reporting Restrictions) [2014] 2 FLR 410, FD, at [46]. This is also set out in the Practice Note below.

The President quote from a ‘most helpful note’ sent to his office by Mike Dodd in December 2013, the then legal editor of the Press Association.

“There is a page on the Injunctions Alerts Service website http://www.medialawyer.press.net/courtapplications/mediaorganisations.jsp – which lists the media organisations served, and the relevant telephone numbers, and which states at the top:’The notification system serves all the national media (newspapers and broadcasters) with the exception of the Financial Times and Sky News. If notice has to be served on these two companies it needs to be served on them directly.’

The service was also established on the basis that subscribing organisations would be taken to have been served with an application if notification was sent via the service. The system works as follows: Would-be applicants are supposed to call a number, given in the Practice Note, and speak to the Customer Services staff who deal with the service. They then send the documents, electronically (which is easier) or by fax, to the service. These documents are, if necessary, scanned to be put into electronic form, and are then distributed via e-mail alerts to the national media. Distribution is followed up by calls to each of the subscribing organisations to check that service has been received.

The service does NOT serve orders which have been obtained from the courts (despite the continuing efforts by some law firms to use it for this purpose).

The Media Lawyer site sets out the practical steps:

An applicant (or his solicitor) should telephone the Press Association’s CopyDirect service on a dedicated number – 0870 837 6429 – confirming that he wishes to apply for a reporting restriction order in the Family Division. The documentation identified in paragraph 3 of the Practice Note should then be faxed to 0870 830 6949 or emailed to the email address provided by CopyDirect when the applicant calls the service. Attachments to emails must be in Word format.

CopyDirect will, on receipt of the documentation send via either email or fax the documentation to the subscribing media organisations. CopyDirect will call the media organisations to ensure the material has been received.

CopyDirect will also confirm receipt to the applicant. CopyDirect will maintain records of notifications received and sent, including timings, for a period of three months. Copies can be made available to applicants, if required, for verification.

Operational Hours

Mon-Fri 8am-11pm
Saturday and Sunday 10am-11pm
Christmas Eve 8am-6pm
Christmas Day 9am-6pm
Boxing Day operating hours will be the same as the day on which it falls.
New Years Eve 8am-11pm
New Years Day operating hours will be the same as the day on which it falls.

There are no costs to applicants for this service.

Judges will expect applicants to have filled out the checklist for those applying for injunctions before they entertain an application. The Checklist PDF can be downloaded here

The Practice Direction 12I and Practice Note

The Media Lawyer site also provides a copy of the standard form of order to be adopted when a reporting restriction order is made in the Family Division. This is set out under ‘Further Reading’ below. It is also helpful to include an Explanatory Note . This sets out briefly what the case is about so allows journalists to make an informed decision about whether they want to object to your application or not.

The Practice Direction makes it clear such applications need to be made in the High Court. The other parties should get at least 14 days notice – Practice Direction 12C. The court may extend or shorten this time (see rule 4.1(3)(a)), using its general powers of case management. However, the case of AB in 2019, dealing with an application for reporting restrictions concerning an inquest into the death of a child, says only 3 days is required, relying on the CPR, rather than the FPR.

Methods of service are set out at Part 6 of the CPR – generally personal service, first class post or can be done electronically.

Application and evidence
The application may be a freestanding claim brought under the Part 8 procedure in the Civil Procedure Rules 1998 or it may be made within existing proceedings to which either the CPR or Family Proceedings Rules 2010 apply. I

It may be appropriate to seek a direction under CPR 39.2(4), that the identity of a party or witness should not be disclosed, and for documents to be drafted identifying individuals by initials.

The applicant should prepare

(a) the application/claim form

(b) a witness statement justifying the need for an order

(c) any legal submissions

(d) a draft order (see suggested form of this order below) and

(e) an explanatory note (an example of this can be found at the end of the suggested draft order below)

If you don’t have time to get the relevant documents together, the court will probably want you to provide a written statement as soon as you can. Unless the court orders something different, you should provide these documents on request to any person who is affected by the order. See W v H (Family Division: Without Notice Orders) [2001] 2 WLR 253; [2001] 2 FLR 927.

So how do I know who and how to serve?

The process seems relatively straightforward for those news organisations covered by Copy Direct. However, it does NOT cover the Financial Times, Sky News or ‘local or regional media or magazines’ OR legal bloggers.

There seems to be no guidance as to how a litigant in person is supposed to identify these entities and then go on to serve them. It surely cannot be proportionate to suggest that every single regional newspaper needs to be contacted to inform them that an application is going to be made to exclude them from a hearing about which they would almost certainly have had no interest in attending or reporting about.

The Practice Note isn’t much help, simply referring that service of ORDERS should be ‘effected in the usual way’ – the Media Lawyer website gives the addresses of the main news organisations on its site. However, with regard to applications to restrict attendance of journalists NOT subscribing to Copy Direct, it simply states

Appropriate local and regional newspapers and magazines should be served with application notices in the usual way

Again, it is not clear how one is supposed identify an ‘appropriate’ local/regional reporting outlet and how one is then supposed to go on to serve an entity one may not even be aware exists. Nor is it clear at all who or what now comprises ‘legal bloggers’ who may wish to be informed and how they may be contacted.

The LA in the AB case (above) served the media via Copy Direct and also the local papers in their area, which seems sensible – but the information they provided and a very sparse ‘explanatory note’ was criticised by the court.

The Media Lawyer website offers information at

www.willingspress.com

This is a subscriber website detailing comprehensive lists of UK and overseas titles (newspapers and magazines), their contact details and publishers – but at the time of writing, this link does not appear to work.

I can only hope that for litigants in person, so long as they comply with what is set out with regard to the Copy Direct notification service, and inform the Financial Times and Sky News separately, they cannot be criticised for any disproportionate breach of any journalist or legal bloggers Article 10 rights.

I will update this post if I get any better/further information.

Further Reading

(1) Model Order

IN THE HIGH COURT OF JUSTICE Case Number:
FAMILY DIVISION
[PRINCIPAL REGISTRY]

BEFORE [JUDGE] IN PRIVATE

IN THE MATTER OF THE COURT’S INHERENT JURISDICTION

BETWEEN

[ ]

and

[ ]

REPORTING RESTRICTION ORDER

IMPORTANT

If you disobey this order you may be found guilty of contempt of court and may be sent to prison or be fined or have your assets seized. You should read the order carefully and are advised to consult a solicitor as soon as possible. You have the right to ask the Court to vary or discharge the order.

EXPLANATION

  1. On [date] the Court considered an application for a reporting restriction order.
  2. The following persons and/or organisations were represented before the Court:[describe parties and their advocates]
  3. The Court read the following documents: [list the documents]and/orThe Court directed the [Applicant/Claimant] to file a statement no later than [date] setting out the information presented to the court at the hearing.and/orThe Court directed that copies of the attached Explanatory Note and [list any other documents] be made available by the [Applicant/Claimant] to any person affected by this Order.
  4. [In a case where an undertaking in damages is required by the Court:The Applicant gave an undertaking that if the Court later finds that this Order was obtained as a result of any deliberate or careless misrepresentation by the Applicant, and that this has caused loss to any person served with the Order, and that that person should be compensated, the Applicant will comply with any order the Court may make.]
  5. In the case of an order made without notice:This order was made without notice to those affected by it, the Court having considered section 12(2) Human Rights Act 1998 and being satisfied (i) that the [Applicant/Claimant] has taken all practicable steps to notify persons affected and/or (ii) that there are compelling reasons for notice not being given, namely: [set out the Court’s reasons for making the order without notice]
  6. [In the case of an application by a local authority:The Court granted permission to the Applicant to apply for the exercise of the Court’s inherent jurisdiction]

ORDER

  1. Duration Subject to any different order made in the meantime, this order shall have effect[in the case of an adult] during the lifetime of the [Defendant], whose details are set out in Schedule 1 to this order.[in the case of a child] until [date], the 18th birthday of the child whose details are set out in Schedule 1 to this order (’the Child’).
  2. Who is bound This order binds all persons and all companies (whether acting by their directors, employees or agents or in any other way) who know that the order has been made.
  3. Publishing restrictionsThis order prohibits the publishing or broadcasting in any newspaper, magazine, public computer network, internet website, sound or television broadcast or cable or satellite programme service of:
    1. the name and address of
      1. the [Defendant/Child];
      2. [in the case of a child] the Child’s parents (’the parents’), whose details are set out in Schedule 2 to this order;
      3. any individual having day-to-day care of or medical responsibility for the [Defendant/Child] (’a carer’), whose details are set out in Schedule 3 to this Order;
      4. any residential home or hospital, or other establishment in which the [Defendant/Child] is residing or being treated (’an establishment’);
    2. any picture being or including a picture of either the [Defendant/Child], a carer or an establishment;
    3. any other particulars or information relating to the [Defendant/Child];IF, BUT ONLY IF, such publication is likely to lead to the identification of the [Defendant/Child] as being [set out the feature of the situation which has led to the granting of the order].
  4. No publication of the text or a summary of this order (except for service of the order under paragraph 7 below) shall include any of the matters referred to in paragraph 3 above.
  5. Restriction on seeking information This Order prohibits any person from seeking any information relating to the [Defendant/Child] [or the parents] or a carer from any of the following:
    1. the [Defendant/Child];
    2. [the parents];
    3. a carer;
    4. the staff or residents of an establishment.]
  6. What is not restricted by this Order Nothing in this Order shall prevent any person from:
    1. publishing information relating to any part of a hearing in a court in England and Wales (including a coroner’s court) in which the court was sitting in public and did not itself make any order restricting publication.
    2. seeking or publishing information which is not restricted by Paragraph 3 above.
    3. inquiring whether a person or place falls within paragraph 3(a) above.
    4. seeking information relating to the [Defendant/Child] while acting in a manner authorised by statute or by any court in England and Wales.
    5. seeking information from the responsible solicitor acting for any of the parties or any appointed press officer, whose details are set out in Schedule 4 to this order.
    6. seeking or receiving information from anyone who before the making of this order had previously approached that person with the purpose of volunteering information (but this paragraph will not make lawful the provision or receipt of private information which would otherwise be unlawful).
    7. publishing information which before the service on that person of this order was already in the public domain in England and Wales as a result of publication by another person in any newspaper, magazine, sound or television broadcast or cable or satellite programme service, or on the internet website of a media organisation operating within England and Wales.
  7. Service Copies of this Order endorsed with a notice warning of the consequences of disobedience shall be served by the [Applicant/Claimant] (and may be served by any other party to the proceedings)
    1. by service on such newspaper and sound or television broadcasting or cable or satellite or programme services as they think fit, by fax or first class post addressed to the editor (in the case of a newspaper) or senior news editor (in the case of a broadcasting or cable or satellite programme service) or website administrator (in the case of an internet website) and/or to their respective legal departments; and/or
    2. on such other persons as the parties may think fit, by personal service.
  8. Further applications about this Order The parties and any person affected by any of the restrictions in paragraphs 3-5 above may make application to vary or discharge it to a Judge of the High Court on not less than [48 hours] notice to the parties.

SCHEDULE 1

[The [Defendant/Child]’s Full Name:
Born:
Address:]

or

[Information enabling those affected by order to identify the Defendant/Child]

SCHEDULE 2

[Similar details of parents]

SCHEDULE 3

[Similar details of carers or other persons protected]

SCHEDULE 4

[Contact details of responsible solicitor and/or press officer]

Date of Order: [ ]

(2) Example of Explanatory Note

NHS TRUST X v AB

Application for a Reporting Restriction Order

DRAFT EXPLANATORY NOTE

1 AB is a child who suffers from a degenerative disease. An application has been made by the NHS Hospital Trust responsible for his care for the Court’s approval of the withdrawal of ventilation. This course is opposed by AB’s family.

2 On [date] the application will be heard by the President of the Family Division, who will give judgment in open court.

3 A Reporting Restriction Order has been [made/applied for] to protect AB’s right to confidentiality in respect of his medical treatment. This does not restrict publication of information or discussion about the treatment of patients with similar conditions, provided that such publication is not likely to lead to the identification of AB, those caring for him, the NHS Trust concerned or the establishment at which he is being cared for.

Citations: [2005] 2 FLR 111

SCHEDULE 1

[The [Defendant/Child]’s Full Name:
Born:
Address:]

or

[Information enabling those affected by order to identify the Defendant/Child]

SCHEDULE 2

[Similar details of parents]

SCHEDULE 3

[Similar details of carers or other persons protected]

SCHEDULE 4

[Contact details of responsible solicitor and/or press officer]

Date of Order: [ ]

(2) Example of Explanatory Note

NHS TRUST X v AB

Application for a Reporting Restriction Order

DRAFT EXPLANATORY NOTE

1 AB is a child who suffers from a degenerative disease. An application has been made by the NHS Hospital Trust responsible for his care for the Court’s approval of the withdrawal of ventilation. This course is opposed by AB’s family.

2 On [date] the application will be heard by the President of the Family Division, who will give judgment in open court.

3 A Reporting Restriction Order has been [made/applied for] to protect AB’s right to confidentiality in respect of his medical treatment. This does not restrict publication of information or discussion about the treatment of patients with similar conditions, provided that such publication is not likely to lead to the identification of AB, those caring for him, the NHS Trust concerned or the establishment at which he is being cared for.

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.