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How pushing the ‘victim/perpetrator’ dichotomy in the Family Court system hurts us all

This is a talk delivered by Sarah Phillimore at the Families Need Fathers conference in London on September 14th 2019

The abstract concept of ‘Justice’ is often portrayed as the Greek goddess Themis, usually depicted holding a sword and scales. This represents her ability to cut fact from fiction with no middle ground and the need to be balanced and pragmatic. However the blindfold is a modern addition.  It symbolises that justice must be blind i.e. applied equally to all who come before her.

In recent years there appears to have been an orchestrated campaign against both the scales and the blindfold, when it comes to issues of violence in intimate relationships before the family courts.  For the first time in my 20 years now as a lawyer, I see not merely journalists and campaigners showcasing their lack of understanding of law and procedure – I see them joined and supported by actual politicians and actual ‘Inquiries’ established by actual Government departments. I and others have commented critically about this elsewhere

If this sounds harsh I am sorry. I do not say this to diminish the suffering of victims of abuse. Violence in relationships is common and is a blight on our society. I agree that a parent who is abusive to anyone, let alone their child’s other parent, is not a good parent and they should not have unfettered access to a child without some clear evidence that this is safe.  I agree that women are more likely to be the victims of violence at the hands of male partners. Further, I would be surprised to find anyone who doesn’t think it outrageous that people risk being cross examined directly by those who may be using the court system to further abuse and humiliate. Happily, in my experience at least this is not commonplace – Just out of interest – how many people in this room have either questioned directly an ex partner in court or been questioned directly by an ex partner?

We must be able to say the names of those children who have died painful and frightening deaths at the hands of their adult carers, when the child protection system failed to ask the right questions or properly assess risk – Ellie Butler, Alexa-Marie Quinn, Peter Connelly, Victoria Climbie, Elsie Scully-Hicks Daniel Pelka

Even this short list is too long. When the child protection system fails it is their faces that we must see.

 

 

 

 

 

 

 

But. It is clear that children risk being hurt and killed by men AND women. Even in that short list above shows women are capable of hurting and killing children, or of deliberately lying to protect the men they know are hurting them.

The only fool proof way to prevent children from pain and suffering is to prevent them from ever being born.  There is no system that can protect against all risk. We need to do better – and I will discuss today how we can do that – but the answer to a system that you find unsatisfactory and potentially unfair is NOT to agitate to make it even more unsatisfactory and unfair.

I don’t agree the current crop of campaigners will achieve anything to make victims and their children safer. The MoJ Inquiry and the Sunday Mirror ‘campaign’ etc etc etc is a call to examine or change laws which do not actually exist.  I am repeatedly told via social media that we ‘must’ see a change to the law that permits ‘snap decisions which promote contact at all costs’. This is not, never has been and never will be the law.

To campaign on such a false premise is a waste of time and energy. More sinisterly, the ‘changes’ which people want to see, appear to involve very significant challenge to the integrity of both the rule of law and due process.

  • by describing complainants as ‘victims’ at the very outset.
  • Assuming that these ‘victims’ are women
  • By inviting under the campaigning umbrella a number of women who have been found to have caused very serious harm to their children, yet rejecting those findings as yet more ‘failings’ of the family courts. [For comment on Victoria Haigh and the very many judgments against her, see this post from The Transparency Project. ]

 

I believe Brexit has unleashed something very harmful into our attempts to talk about serious issues; experts are disdained, facts are distorted and feelings are what matter. This joined forces with another trend – the identification of ‘complainants’ as ‘victims’ before any allegation is either accepted as true or found to be so. This first emerged in the criminal justice system; tragically as a very well intentioned effort to combat some of the truly disgusting treatment meted out by police and lawyers to those who complained about sexual assault.

However, the law of unintended consequences continues to operate, and as Richard Henriques warned and the the trial of Carl Beech showed, to designate people as ‘victims’ at the very outset of any investigative procedure, has the potential to cause serious and damaging consequences for the integrity of what follows.

The time has long gone for those of us who are deeply troubled by all of this to attempt to reclaim the narrative, to restore the position that words have meaning. They are important. Because language shapes thought – not the other way around.

There are two fundamental and serious problems in using the word ‘victim’ to describe a complainant whose allegations have either not been proved or have not been accepted. It is unfair to all who participate in court proceedings.

  • setting up a complainant as a ‘victim’ at the inception of the court process gives that person a wholly unrealistic view of how their evidence may be treated in an adversarial court process. It is not enough to simply assert something – you must prove it.
  • Treating one party as a victim prior to any findings made about the factual basis for that status, risks undermining the fairness of the proceedings and casting the respondent as a ‘villain’ at the outset.

So I will attempt today to go back to basics.

  • What is the rule of law? What is ‘due process’? And why are they important?
  • What is evidence? And how does the family court use it? How should you present it?
  • Where is the system failing and what can we do to make it better?

 

What do we mean by the ‘rule of law’ and ‘due process’ ?

The Secretary-General of the United Nations defined the rule of law in this way:

a principle of governance in  which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.” (Report of the Secretary-General: The rule of law and transitional justice in conflict and post-conflict societies (S/2004/616).

The rule of law is one of six of the key Worldwide Governance Indicators (The others being Voice & Accountability, Political Stability and Lack of Violence, Government Effectiveness, Regulatory Quality, and Control of Corruption).

‘Due process’ is under the umbrella of the Rule of Law:

  • procedural due process – legal proceedings which are carried out in accordance with established rules and principles; and
  • substantive due process – legal proceedings should not result in the unfair, arbitrary or unreasonable treatment of an individual.

If you are in any doubt as to the importance of the ‘rule of law’ or due process, visit and spend some time in one of the countries which doesn’t have either.

 

So what IS evidence? And how does the court treat it?

I make no apology for going back to basics, such is the staggering level of misinformation  I am seeing on a daily basis from those who purport to have positions of authority and credibility.

Evidence is anything that you experience, read or are told that causes you to believe something happened. It is the information used in court to try and prove something. It can be obtained from documents, objects or witnesses.

Establishing the evidence in a case allows you to ask ‘what does it prove?’. A thing that is proved or accepted then becomes a fact which is relevant to the outcome of the case.  We need to know the facts in order to decide what consequences follow or what the risks are and how they are to be managed. The Family Justice System (FJS) puts proof of facts at its heart.

In 2013 Mr Justice Baker addressed a conference asking  – how can we improve decision making in the family courts? He identified the twin evils of delay and cost which impact on the quality of decisions made. He commented on the alternatives to litigation, such as mediation or arbitration that might work to mitigate those evils. But he was also clear that alternatives to litigation could never be complete substitutes for litigation.

But there will always be a substantial number of disputes in which a forensic process is unavoidable, a process that involves consideration of allegations and cross-allegations made by the parties, a judicial analysis of the evidence, the makings of findings and an assessment of the consequences of those findings. There are some people who genuinely believe this can be done by some sort of committee without involving lawyers at all. Such views are profoundly mistaken.

This does not mean of course that our current system is without flaws. ‘Fact finding’ may sound simple but is anything but. The foocus on most law degrees is dissection of the lofty legal decisions of the superior courts – but when they hit the ground in practice, the vast majority of legal endeavours will involve the identification and processing of facts.

Understanding how to identify and apply facts in court is complicated.  Jerome Micheal, the author of ‘The nature of judicial proof: An inquiry into the logical, legal, and empirical aspects of the law of evidence’ summarised his view of the ‘theoretical basis of the arts of controversy’ in 1948, pointing out that there are very many things we need to appreciate when we approach evidence in a court. Among others, we need to understand probability, causation, the distinction between direct or perceptual and indirect or inferential knowledge. We base much of our understanding on presuppositions about human nature and behaviour – these often change over time or as research develops – but we need some basic knowledge about how humans think and react.

Judges often say findings of fact must be based on evidence, not speculation – Re A (A Child) (Fact Finding Hearing: Speculation) [2011] EWCA Civ 12) but as that case illustrates, the line between the two is not always clear or easy to find and obviously involves some subjective discretion form the decision maker.

However, regardless of all the obvious imperfections of the fact finding exercise,  we have as yet, no other system to deal with contested allegations.  I am not sure what else could be suggested – we return to trial by combat? Or in the modern era presumably this will be ‘trial by Facebook’ – whoever can garner the most ‘likes’ and ‘shares’ or the biggest amount in their crowd funder will ‘win’. I have a horrible suspicion that this is exactly how some people think it should work, as we have seen in both the Minnock and Baldwin cases.

But unless and until Parliament decides to dissolve the courts of law in favour of the courts of public opinion, we need to focus on what we have got.

 

The family court process

Deciding what ‘weight’ attaches to the evidence will comprise a mixture of objective and subjective elements. Judges have a pretty wide discretion; it is not a ground of appeal that you didn’t agree with the judge’s decision. You have to show the judge was wrong – he or she took into account the wrong things or ignored the right things. Just because a Judge fails to explicitly mention a particular point, doesn’t mean the appeal court will allow your challenge to succeed. A useful example of this can be found in the case of A and R (Children), Re [2018] EWHC 2771 (Fam) where the Recorder was criticised for not making explicit reference to some parts of PD 12J.

Family courts operate an ‘adversarial’ as opposed to ‘inquisitorial’ system. This means that the Judge can only decide the case that is in front of him or her. The Judge does not take on an investigative role. Evidence is presented to the court and challenged by the parties as ‘adversaries’ in the court process. Claims that we are in fact ‘quasi-inquisitorial’ seems to mean in practice to amount to little more but that lawyers are asked to tone down their combativeness a notch.

The court must take into account all the pieces of evidence in the context of all other evidence, The civil standard of proof applies, which means facts must be proved ‘on the balance of probabilities’: If it is more likely than not that the thing happened it is proved – see Re B [2008] UKHL 35). This is known as the ‘binary system’ as there are only two options  – true or false. I appreciate that there is legitimate criticism of this, particularly given the low standard of proof and again I would like to see more official recognition of this, rather than the predominant congratulatory back slapping that the family courts have ‘discovered the truth’. 

Over time rules of evidence developed, to attempt to make proceedings as consistent and fair as possible. For example, in most civil cases ‘hearsay evidence’ is not permitted – that is the evidence of those who tell the court, not what they know themselves, but what they have heard from others. A fundamental point of fairness is that if you don’t accept the evidence offered against you, you must have the ability to challenge it. Its obviously very difficult to challenge the words of someone not in court. For this reason if hearsay is accepted in family court proceedings, the judge must think very carefully about the weight to be attached to it. 

 

Expert Evidence

particular bone of contention revolves around the use of experts – as these experts are often in the ‘soft science’ field of psychology.  I accept that the use of experts is not without controversy and I have seen a worrying lack of humility from some about the strength of their conclusions. However, it’s important to remember that ‘the expert advises but the court decides’ . Expert evidence is just one piece of a jigsaw that a judge needs to try and put together – it is rarely the entire answer to the case  – see Re T [2004] 2 FLR 838.

As Professor Luthert commented in R v Harris and Others [2005] EWCA Crim 1980: It is very easy to try and fill those areas of ignorance with what we know, but I think it is very important to accept that we do not necessarily have a sufficient understanding to explain every case.

 A judge does not have to accept an expert’s evidence but must explain why the evidence is not accepted. See the comments of Lord Justice Ward and Lady Justice Butler-Sloss in the case of Re B (Care: Expert Witnesses) [1996] 1 FLR 667

I accept we need a greater awareness of and willingness to challenge experts on the basis of confirmation bias or scientific prejudice but as barrister David Beddingfield comemented in 2013 –  this can be tricky  – see Expert Evidence – Another Chapter in a Continuing Story in Family Law Week:

The expert, as we all know, is expected to give an opinion about the most significant issues in a case. A paradox underlies the use of all expert evidence: the reason an expert is required is that the decision-maker lacks the expertise of the expert and requires that expert’s help. How is that same decision-maker also competent tojudge the content of the expert’s evidence? How is the decision-maker to choose, for example between two competing experts, each using different methodologies beyond the ken of any non-specialist?

 

Practical problems in family cases – Documents versus words

The uncontroversial ‘gold standard’ of evidence is the contemporaneous documentary record. And this is the fundamental reason why allegations about what did or did not happen in intimate relationships can be so difficult to prove in court, even on a low standard of proof. Many cases I have dealt with involve a bitterly fought battle between parents who make allegations each against the other which are starkly different. It is difficult to discern patterns of behaviour and very difficult to cross examine on a bare denial.

Relationships, which may have endured over decades, may offer the court little evidence but the words of the parties themselves.  Not many of us – I hope – enter into a relationship expecting to keep a running log of all the bad behaviour of our partners.

I was asked a very interesting question about this issue of ‘collecting evidence’

…. would it help to suggest that people keep diaries, records, photos, dates, times, places – particularly when there are already difficulties i.e. any statements may be seen to be more credible if they are detailed and based on contemporaneous notes?

And my answer to that is ‘be careful’. You do run a risk that you may appear to be offering self serving or manipulated evidence. The courts are often very wary of recordings of arguments etc because of course it is difficult to know what happened immediately before the recording started. I have seen recordings and diary entries used with powerful effect but there is always a suspicion that such one party may have acted deliberately to antagonise the other in order to ‘collect evidence’ . I appreciate this is a very difficult position to be in – much abuse occurs behind closed doors and the abuser is able to present a very different face to those outside the relationship.

But it remains an inescapable truth that the more serious the allegations you make, the less likely is any court to simply accept them, absent any supporting evidence – see for example the case of Sivasubramaniam v Wandsworth County Court & Ors [2002] EWCA Civ 1738. The complainant described events to the court in this way:

part of a long-running criminal conspiracy against him involving members of Wandsworth Borough Council solicitors, lawyers and the chief executive and the finance officer and their assistants, members of the Wandsworth police, doctors in the hospitals, social workers, local court officials, judges and the lessee occupying the flat below his. The conspiracy involved unsuccessful attempts to murder him … It had included impersonation of him, had involved the fraudulent termination of four sets of legal proceedings that he was conducting, including the two with which we are concerned, while he was detained under the Mental Health Act or under medication thereafter, and continued to this day.

Unsurprisingly the court declared that no Judge would be able to accept such a version of events on one person’s word alone.

 

 

Gold Standard Evidence versus Witness Credibility

The courts have said for a long time that the best way of testing witness credibility is to test witnesses against objective facts which are independent of their testimony.

Lord Goff in Armagas Ltd v. Mundogas S.A. (The Ocean Frost), [1985] 1 Lloyd’s Rep. 1, p. 57:

Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth.

Lord Pearce in the House of Lords in Onassis v Vergottis [1968] 2 Lloyds Rep 403 at p 431:

Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred.

It is clear that people who have been traumatised by abuse over many years can behave in ways that reflect that trauma. They may not be able to be clear or consistent in their account.  They may have been too afraid or too ashamed to have told any one else so have no police or medical evidence. Or they may worry about ‘rocking the boat’ and risking losing contact with their children. Exposure to gradually escalating abuse and intimidation can become numbing and appear ‘normal’ – the ‘boiling a frog’ principle.

The massive problem for the court system however is that a tendency to be inconsistent or reveal crucial details at a much later stage is also strongly suggestive of someone who is lying.

Therefore the credibility of witnesses in family cases is often of supreme importance. It really matters how you come across when you give evidence. The appeal courts often say that they are at a disadvantage when examining a challenge to the decision of the first court, as they don’t have the same opportunity to assess how people gave their evidence as well as what they actually said. I think there is a danger – of which the courts are aware – that too much or improper weight can be put on demeanour as an indication of credibility.  They are two very different things –  ‘demeanour’ is concerned with whether or not a witness appears to be telling the truth.

It is usually unreliable and often dangerous to draw conclusions from demeanour alone. Is someone hesitant because they are lying or just naturally cautious? These problems are magnified where the witness is from a different country or culture than the Judge or is giving evidence through an interpreter. I accept that most of us still do have a view of how a ‘victim’ should present in court – particularly if that alleged victim is female, and I accept there is a risk that people who don’t fit the general stereotype of ‘victim’ – i.e. weak, timid, tearful – may find their accounts treated as less credible.

The case of Excelerate Technology v Cumberbatch [2015] provides some useful discussion about how Judges assess credibility. It is determined by looking at the following issues.

  • is the witness a truthful or untruthful person?
  • If truthful, is he telling something less than the truth on this issue?
  • if untruthful is he telling the truth on this issue? Not all liars lie all the time and motivations for lying can vary; see the Lucas direction.
  • If truthful and telling the truth as he sees it, can his memory be relied upon?
  • Is what is asserted so improbable that it is on balance more likely than not he was mistaken in his recollection?

 

 

What can we do to improve the situation?

So – what do we do? I accept that court arenas are unpleasant places at the best of times. Attempting to establish the truth or otherwise of your experiences in an abusive relationship is very far from the best of times.

The lawyers and judges must have a clear understanding of how to make proceedings as fair and efficient as possible:

  • have clear understanding of the requirements of PD 12J – see below.
  • Be wary of making any decision based on the demeanour of a witness or what a victim ‘ought’ to do
  • make sure vulnerable witnesses have a safe place to sit and wait before the hearing starts
  • make sure that issues of screens in court, video links and intermediaries are properly discussed in good time.
  • be more willing to impose serious penalties on those who are found to have lied in their evidence
  • list findings of fact as soon as possible and be prepared to take enforcement action as soon as it becomes clear the resident parent won’t accept the findings of the court

What will help the parties?

  • Understand the court process
  • Understand the burden and standard of proof
  • where ever you can – find some additional evidence that supports what you are saying. Are there any medical records or police reports? Did you say anything to a friend or family member at the time? Would they be willing to come to court and be cross examined about what you said?
  • If you have nothing other than your words – that is still evidence but you must be careful to be as clear and consistent as you can. Set out your statement in short numbered paragraphs and go in chronological order. Include everything that you can remember.

However, it has been my view for some time that the fundamental challenges to fair, efficient and humane processing of legal complaints about violence in intimate relationships are very little to do with the lawyers, the Judges and their lack of understanding or training. The real problems will require political will and a huge amount of cash to sort out.

  • court buildings that are not fit for purpose – no or very few waiting rooms, no separate entrance, courts sitting in cramped rooms with very little space, inadequate technology to accommodate video links etc
  • lack of judges and available court rooms to hear fact findings quickly – cases quickly become stuck and are allowed to drift.
  • lack of judicial continuity which is detrimental to effective case management – see comments in the case of A and R (Children), Re [2018] EWHC 2771 (Fam) para 57 -61.
  • lack of legal aid so that vulnerable witnesses may have be face being cross examined by their alleged abuser, the issues in the case are not identified and presented efficiently, litigants in person can’t afford to instruct experts etc, etc, etc.
  • wider societal problems, such as lack of available safe and affordable housing so that the financially weaker partner finds it very difficult to leave an abusive relationship particularly if there are children involved.

This is what we need to tackle. And I have to wonder why we are all so keen to be distracted by yet another newspaper campaign based on what seems to be a complete lack of knowledge or understanding of any of the issues I raise above. At the moment, the only people I can see who will benefit from all this are those who are pushing for Judges to be ‘trained’ – presumably by their own organisations and at significant cost.

And a the elephant in the room will remain. Why do so many people behave so badly in intimate relationships? And why do so many people have so little self worth that they accept it or cannot recognise it until many years have passed and great harm has been done? What as a society are we going to do about this? is there anything ‘we’ can do?

All I can say with certainty is that continued insistence on the FJS or any external agency to ‘fix’ the problems of cruel, unreasonable or otherwise dysfunctional people is doomed to expensive and emotionally harmful failure. And those who will suffer most, as they always do, are the children.

 

 

APPENDIX

Definitions in Practice Direction 12 J

Domestic abuse” includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse. Domestic abuse also includes culturally specific forms of abuse including, but not limited to, forced marriage, honour-based violence, dowry-related abuse and transnational marriage abandonment;

“coercive behaviour” means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim;

“controlling behaviour” means an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour;

“development” means physical, intellectual, emotional, social or behavioural development;
“harm” means ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another, by domestic abuse or otherwise;

“health” means physical or mental health;

“ill-treatment” includes sexual abuse and forms of ill-treatment which are not physical

 

Para 5 what must the court do?

  • dentify at the earliest opportunity (usually at the FHDRA) the factual and welfare issues involved;
  • consider the nature of any allegation, admission or evidence of domestic abuse, and the extent to which it would be likely to be relevant in deciding whether to make a child arrangements order and, if so, in what terms;
  • give directions to enable contested relevant factual and welfare issues to be tried as soon as possible and fairly;
  • ensure that where domestic abuse is admitted or proven, any child arrangements order in place protects the safety and wellbeing of the child and the parent with whom the child is living, and does not expose either of them to the risk of further harm; and
  • ensure that any interim child arrangements order (i.e. considered by the court before determination of the facts, and in the absence of admission) is only made having followed the guidance in paragraphs 25–27 below.
    In particular, the court must be satisfied that any contact ordered with a parent who has perpetrated domestic abuse does not expose the child and/or other parent to the risk of harm and is in the best interests of the child.

Para 8

In considering, on an application for a child arrangements order by consent, whether there is any risk of harm to the child, the court must consider all the evidence and information available. The court may direct a report under Section 7 of the Children Act 1989 to be provided either orally or in writing, before it makes its decision; in such a case, the court must ask for information about any advice given by the officer preparing the report to the parties and whether they, or the child, have been referred to any other agency, including local authority children’s services. If the report is not in writing, the court must make a note of its substance on the court file and a summary of the same shall be set out in a Schedule to the relevant order.

How do we deal with tension around open justice and protecting the vulnerable? Para 10:

If at any stage the court is advised by any party (in the application form, or otherwise), by Cafcass or CAFCASS Cymru or otherwise that there is a need for special arrangements to protect the party or child attending any hearing, the court must ensure so far as practicable that appropriate arrangements are made for the hearing (including the waiting arrangements at court prior to the hearing, and arrangements for entering and exiting the court building) and for all subsequent hearings in the case, unless it is advised and considers that these are no longer necessary. Where practicable, the court should enquire of the alleged victim of domestic abuse how best she/he wishes to participate.

Why are fact findings important – para 16

The court should determine as soon as possible whether it is necessary to conduct a fact-finding hearing in relation to any disputed allegation of domestic abuse –

(a) in order to provide a factual basis for any welfare report or for assessment of the factors set out in paragraphs 36 and 37 below;

(b) in order to provide a basis for an accurate assessment of risk;

(c) before it can consider any final welfare-based order(s) in relation to child arrangements; or

(d) before it considers the need for a domestic abuse-related Activity (such as a Domestic Violence Perpetrator Programme (DVPP)).

Para 40 In its judgment or reasons the court should always make clear how its findings on the issue of domestic abuse have influenced its decision on the issue of arrangements for the child. In particular, where the court has found domestic abuse proved but nonetheless makes an order which results in the child having future contact with the perpetrator of domestic abuse, the court must always explain, whether by way of reference to the welfare check-list, the factors in paragraphs 36 and 37 or otherwise, why it takes the view that the order which it has made will not expose the child to the risk of harm and is beneficial for the child.

 

The woeful state of our debate; when facts just don’t matter anymore

This is a post by Sarah Phillimore

I feel like I am caught on a constant hamster wheel of the same problems and the same criticisms. Nothing seems to change or get any better. Rather, it gets much, much worse as now we see actual Government departments being drawn into an Inquiry on what I fear is a false premise.

So what’s the latest update at the coal face of the dispiriting Mine of Fact lite Narrative?

I have written before about my disquiet over the narrative that appears to be gaining traction in the ‘debate’ about the Family Justice System (FJS). The influence of those pushing the notion that the FJS exists as a tool of misogynistic oppression, and that judges are simply ignorant or uncaring around issues of violence and abuse, has apparently been taken up wholesale by the Ministry of Justice with its 3 month ‘Inquiry’ recently announced. I have also written about this in critical terms; pointing that 3 months is barely long enough to arrange the first meeting and decide the terms of reference.

However, I was initially hearted to see the MP Louise Haigh, one of those who had pressed for the Inquiry, apparently acknowledge via Twitter the true scope of the difficulties.

Cuts to legal aid and soaring complex caseloads for dedicated social workers are all part of a family courts system under incredible pressure,” she wrote. “There needs to be the political will and resource to fix the structural problems in order to keep our children safe.”

However, this optimism was short lived. It soon became clear that the Panel chosen to undertake this Inquiry came from a narrow group and arguably fails to reflect the sheer weight of the competing perspectives and issues that come together to challenge our FJS.

The Ministry of Justice said this about the Panel on May 21st

The three-month project aims to ensure that the family court works first and foremost in the explicit interests of the child, such as their safety, health and well-being. The MOJ-chaired panel will consist of a range of experts including senior members of the judiciary, leading academics and charities.

And – rather worryingly, as the MoJ are apparently silent about how they are going to ‘fact check’ or reassure themselves of the credibility of any complainants:

A public call for evidence will also be launched imminently and will look to those with direct involvement to share their experiences.

The panel was then announced as

  • Melissa Case & Nicola Hewer, Director of Family and Criminal Justice Policy, MOJ (Chair)
  • Professor Liz Trinder, University of Exeter
  • Professor Rosemary Hunter FAcSS, University of Kent
  • Professor Mandy Burton, University of Leicester
  • Mr Justice Stephen Cobb, Judiciary
  • District Judge Katherine Suh, Judiciary
  • Nicki Norman, Acting Co-Chief Executive, Women’s Aid
  • Dierdre Fottrell QC & Lorraine Cavanagh QC (joint representatives), Association of Lawyers for Children
  • Isabelle Trowler, Chief Social Worker for England (Children & Families)

The panel will also be supported by analysts, researchers and relevant policy officials from MOJ.

This is a list of the great and good indeed. But what is immediately apparent is that it contains only one man – Mr Justice Cobb. Women’s Aid get a representative but no charity or organisation that exists to support men within the system is represented. How is this right? How does this encourage faith in the Inquiry to look with the necessary impartiality at the various issues that bedevil the system? Women’s Aid for example have been shown repeatedly to present unhelpful and inaccurate information in pursuit of their agenda.

Why wasn’t a group such as Families Need Fathers approached (I asked them; they weren’t). The dangers of approaching a problem from one perspective only should not really need pointing out. I have already commented about my real unease that women such as Victoria Haigh are being promoted and supported by  ‘those prominent in the domestic violence sector’.  This is not a men versus women issue – both sexes are capable of horrible cruelty and unkindness towards each other and their children. This has to be recognised and accepted before it can be dealt with.

My misery increased when I read a guest post published by the Transparency Project by barrister Charlotte Proudman. It was a piece published without comment or context – simply saying that ‘other pieces were in the pipeline’. I commented directly that I thought this was irresponsible given that Ms Proudman appeared to be making some very serious assertions about the failings of the judiciary to deal properly or at all with issues of domestic violence in the FJS and yet provided nothing by way of any evidence to support these  worrying claims – that did not chime with any of the barristers who commented via social media.

Nor was unease confined to the lawyers.

 

No one gets a free pass

I am glad to see the Transparency Project published a response on 6th July to the unease that this post generated, but remain sorry that such comment was not made at the time. To publish initially Ms Proudman’s post, without comment or context, that made such frankly incredible claims, risks appearing like endorsement.

I am also concerned to see it said by the Transparency Project in their response that people objected to the post because they didn’t ‘like’ what was said or were using their own anecdotal experience as somehow superior to Ms Proudman’s.

My concerns are not about shutting up people who don’t agree with me. But if people are making incredible assertions, that chime not at all with my experience, then I do not think it is unreasonable to ask that the person making the assertion support it with some evidence and that their views not simply be published without comment or context.

This is far too important an area to be decided by any individual’s ‘feelings’ or inherent prejudice or assumptions. I am glad that the Transparency Project does not wish to ‘play it safe’ and will continue to publish a variety of views – but no one should get a free pass about the need for evidence.

I remember hearing Dan Levitin, author of ‘A field Guide to Lies’  speak at the Bristol Festival of Ideas in 2017. He told us we have a moral obligation to check our assumptions and challenge our colleagues. I wrote then and believe still:

The key message from Dan Levitin was that we must ALL take personal responsibility for educating ourselves to think critically and challenge people that we know are pushing misinformation. We cannot discuss issues sensibly or at all unless we are able to agree on what the ‘facts’ are. There are no ‘alternative facts’ only ‘facts’. But peoples’ beliefs about what is or is not a fact can shift over time.

The consequences of the degraded respect for ‘facts’ and ‘experts’ are all around us. Challenges to the FJS need to be based on proper data, properly analysed. The consequences if it is not are very serious. I am afraid the constitution of the Panel for the Inquiry and the continued promotion of incredible assertions on no evidence, gives me very little confidence that one inherently skewed narrative is going to be challenged sufficiently or at all.

But we shall see. I hope I am wrong.

The NSPCC and child protection – what I learned this month about speaking up

I started this website with the help of Mumsnet users in 2014. I thought it would be a good way to address some of the misinformation on offer about care proceedings and child protection in England and Wales.  The website analytics seem to bear that out – so far in 2019 (from Jan 1st until June 23rd 2019) the site has 202,170 users, about 34,000 every month.

Child protection seems to be an ever green topic of difficulty for many. I will restate it in the simplest terms I can.

  • A child is defined as a person aged 0-18.
  • The majority of children under 12 are unlikely to be considered ‘Gillick competent’ to make important decisions about their own lives.
  • We have a difficult and grey area around 13-16 where children may well as individuals have greater capacity than the law allows them. But we have to draw a line somewhere.
  • And for children, sex and the criminal law, that line is firmly set at 13 years.  See the Sexual Offences Act 2003. A child under 13 cannot consent to sex. It is rape.

I therefore consider myself on firm ground to say that the vast majority of children under 12 neither want nor need exposure to adult sexuality. It is important that they are allowed the time and space to develop their own identities and their own sexual preferences; free of the coercion or manipulation of an adult. And once they cross that threshold into adulthood they should be free to live and love as they wish, according to the boundaries of the existing laws. Sexual activities between consenting adults is none of my business or concern.

What I have witnessed developing over the last year or so has caused me increasing concern about the extent to which groups of adult men wish to re-frame the discussion about the sexuality of children. And the extent to which they are often coy about stating exactly how they define ‘a child’. The difference between a 9 year old and a 16 year old is vast and in every domain; physical, sexual, social.

Their scripts should not be written for them by adults who have a particular drum to beat – I have already written, for example, at my deep unease about how a High Court Judge dealt with a 3 year old ‘transitioning’.

(as an interesting aside I found myself subject to a recent actual blackmail attempt by the pro-paedophile organisation Prostasia after querying why they had a man involved in their organisation who had been arrested in 2012 for sexual contact with a child under 13. The rage of thwarted male entitlement is strong indeed.)

My concerns finally reached their zenith on June 12th 2019. Idly scrolling through my Twitter feed I noted that a number of people had raised concerns with the NSPCC over allegations that one of their employees had come to work dressed in his rubber fetish gear, masturbated in the toilets at work, filmed it and published on the world wide web. The response of the NSPCC was – via their public twitter feed – to call those who raised concerns ‘bullies’ and asked people to report them. Various high profile Twitter users followed suit, calling them ‘homophobes’ – as apparently the employee in question is a gay man.

I wrote the following email to the NSPCC

The text of the email is here:

I write using my Chambers email address so that you are able to reassure yourself as to my identity and my interest in/knowledge of child protection law and safeguarding policies. I have been a specialist family law barrister since 1999. I have copied my MP Michelle Donelan into this email given the level of my concerns.

On the evening of 12th June 2019 I became aware via the social media site ‘Twitter’ of an allegation that a member of your staff had engaged in sexual activity on NSPCC premises, had filmed himself engaged in this activity and published that recording to the internet, making it clear that he was filming himself on NSPCC premises. I then further noted that when members of the public attempted to alert you to this via Twitter, your response via your public Twitter feed was to describe this as ‘homophobia’, and to suggest any such tweets should be reported as in breach of the Twitter terms of service as ‘bullying’.

On the morning of June 13th 2019 I therefore published a tweet, including the Twitter handle of your organisation, asking your organisation to make it clear what investigations you proposed into this allegation. I am well aware that social media is frequently used irresponsibly by some to make malicious and false allegations and I certainly want to play no part in dissemination of false information. However, I assume that if the allegation about your member of staff was in fact malicious or otherwise false, you would be able to respond quickly to reassure the public. That you have not done so, causes me considerable concern.

This allegation, if true, represents unboundaried and actively dangerous behaviour. It would be unacceptable in any workplace, but is even more alarming in the context of your charitable status and significant statutory powers in the field of child protection. The public is entitled to know what your response is to such a serious allegation.

I asked for a reply by 4pm today and have heard nothing.

Please therefore would you respond to me by 4pm on Friday 14th June. If you are unable by then to reassure me that either this allegation is false or that you are taking urgent steps to investigate, I will refer this matter on to the Charities Commission without further reference to you.

Regards
SP

I received no response to this email other than some cut and paste job sent at 16.05 on 14th June, by which time I had already made a referral to the Charities Commission. [EDIT – this should read ‘Charity Commission’]

I was then contacted by the Sunday Times and a news agency, neither of which reported on this – I was told by the news agency that ‘no paper would touch this’. I expressed frustration and concern about this – why? why would no paper report on this? It is a clear and obvious matter of public interest that a charity set up to safeguard children would attempt publicly to shame people who had attempted to bring serious allegations to their attention.

A week after that, I offer grateful thanks to Roll on Friday, The Sunday Mirror and Mumsnet users who seemed to be the only ones prepared to recognise and report upon a matter of public interest.

I note with increasing concern that matters appear to be continuing along the same path of seriousness; that the NSPCC appears to see itself as an organisation geared to the promotion and protection of the sexuality of adult men. On every metric of which I am aware, adult men are those who pose the biggest risk of sexual harm to children.  The most recent news is that the NSPCC are apparently subject to a variety of ‘conditions’ before they will be ‘allowed’ to take part in London Pride.

 

Where now?

Imagine if I said as a disabled woman – you may not criticise my behaviour. If you do I will call you ‘disablist’ – I will try and get you sacked etc, etc. That would obviously be ridiculous. Disabled people are people after all; we aren’t saints. Exactly the same argument applies to those who identify as gay or trans or any thing else. No one is above scrutiny. No one can use their identify as part of a minority, persecuted or not, to shut down legitimate concern about their activities. To allow this will be to put children at serious risk of harm from those predatory adults who will claim membership of particular groups to evade scrutiny. We must speak up against this.

The Charities Commission request 30 days for a response. On 15th July I will consider that response, or lack thereof.  If I am not satisfied that they and the NSPCC understand the seriousness of this situation I will raise money via the Crowdjustice web site to investigate what legal action is possible.

I hope very much that the response I get will reassure me – and the many others who complained – that the NSPCC does understand its charitable objectives and guiding principles and it will never, ever, again attempt to shame or dissuade people from raising concerns if it appears to be acting in breach of those.

IIf you are or if you know of a lawyer with specialist knowledge in charities, regulatory law or judicial review, do please get in touch. My next steps must be to identify specialist lawyers who would be willing to take on a legal action via funding from Crowd Justice.

I will update this post on July 15th 2019.

 

 

EDIT JULY 27th

I am pleased to note that the NSPCC did contact me on July 15th to say that they had referred themselves to the Charity Commission, recognising that this was a serious incident. I have yet to hear back from the Charity Commission itself and will chase them for information in September.

The State versus the family: does the Government no longer trust parents?

This is a post by Sarah Philimore

I was really pleased to attend the Tortoise ThinkIn in London on May 1st. The aim of Tortoise is to ‘flesh out’ how to take reporting forward. A ThinkIn is a system of organised listening, a forum for civilised disagreement and the ‘engine of our journalism’.

Polly Curtis, the journalist who has already written examining in depth the child protection system, and James Harding, the co-founder of Tortoise and former Editor of The Times, chaired the discussion. It is not difficult to see why they are interested in understanding more about the child protection system; many are seriously concerned at where we now find ourselves. As Polly commented in her article ‘The Poor Parents’:

These are the numbers: by the time they reach their fifth birthday, nearly one in five children have been referred to social workers. The number in care has peaked at 75,000 – the highest level since records began in 1994. The system designed to keep our children safe is creaking under its caseload.

So what is going on? Opening the floor to those who are ‘really thinking’ about the issues – regardless of their backgrounds and experience,  may open up a different perspective and increase the understanding of even the most specialist participant.

Defensive practice

The starting question asked  –  what are the drivers to this huge increase in care proceedings? Andy Bilson made the point that there are drivers both inside and outside the system. Outside we see the cuts in services, poverty and deprivation. You are ten times more likely to be in care if you fall within the bottom 10% of the most deprived in the population. Then there are the drivers within the system; defensive social work practice and risk aversion. He noted that before their 5th birthday 1 child in 16 would be investigated for risk of abuse; in 66% of cases no abuse is found. There is no evidence that the current child protection system works. Social work itself has changed.

We circled back to this point with a variety of speakers. One made the very powerful point that we were seeing ‘assessment without action’. Box ticking was a way for social workers to guard against criticism but the work had no purpose.

So why are social workers so defensive? I was very glad to hear James Harding admit that he had felt ‘uncomfortable’ for much of the discussion, recalling the role he had played as a journalist in shaping the narrative around child protection issues; a focus on ‘single issues’ that then translated to political culture.

We could all see the spike on the graph after2007 and the media storm around the death of Peter Connolly. As one speaker commented, as a society we have a collective responsibility for how social workers behave – if they are to be subjected to death threats for not intervening and a child dies, then do not be amazed if a decade later we are seeing the ripple effect of that defensive culture still in operation.

But as James commented – it is easy to show what you are against, rather harder to show what you are for.  How do we create an agenda to create change?

 

Timescales

There was much talk about ‘timescales’. Clarissa, a parent whose children have been adopted said how much she hated the word as she heard it all the time. She was told to write a letter to her children apologising for ‘not making changes’ ‘within their timescales’ – changes she said she did not know how to make. Alice Twaite of The Transparency Project commented that access to knowledge comes too late; legal aid provision is skewed to the very end of the process where the 26 week timescales for care proceedings may mean it is impossible for parents to access the therapy or support they need to show that they can turn things around. I commented that the apparent rigidity of the 26 weeks caused me concern; not least because I saw real fear and unease in court at times when Judges commented that they had to keep the case ‘on track’ or risk ‘their stats’ being scrutinised.

But of course, the response to that is that 6 months is a long time if you are a baby – its possibly your entire life.  The neurological evidence seemed clear – the impact of abuse and neglect on young children was very serious. We had to move quickly to prevent children becoming very seriously damaged. Polly commented that this would be a fruitful area of further investigation as something substantial that can be measured.

What is our narrative?

There were so many other points made of interest that it would take a blog post of many thousand of words to cover it all. I have tried here to highlight what resonated most for me. What I find most compelling is the intersection of the various narratives. What ‘story’ do we want to tell, and why?  Is it about the child who needs ‘rescuing’ from the dangerous home? Is about the mother like Clarissa who sees her children once a year and counts herself ‘lucky’ to do so; she grieves every birthday, every Christmas.  Is it about austerity and cuts and lack of services? Is it about distrust and blame and fear?

Its all of these of course. And that has been the challenge for journalists over the years. To take these many and unweilding narratives and from that find a story that the public want to read. When the family courts are closed and secretive, journalists will fill the gaps in their knowledge with the sensationalised. The challenge is now upon us all to investigate openly and honestly. As Alice Twaite pointed out; journalists need to take care with their narratives. If there is a published judgment where findings of fact have already been made, those cannot be skated over in favour of a more lurid and clickbait worthy narrative from a parent who may not have an incentive to reveal all the necessary detail.

I have been – rightly I think – very critical of journalists in the past and I think the negative legacy from their reporting of the deaths of Peter Connolly and Victoria Climbie is with us still. But many of us ‘in the system’ have not helped the wider public to understand, indeed many still cleave to ‘privacy’ as some strange badge of  honour.

I do not know what we need to do to turn this ship around. And I appreciate that constant talking around a problem can appear nothing more than an indulgent waste of time. But this felt different. Since 2015 and the first CPConference. I had often felt despair about how the willingness to engage in talking would ever translate into action.  But finally now, it seems as if something is happening. Parent advocacy groups are springing up around the country, Louise Tickle continues with her Open Family Court project – and Tortoise shows that there is appetite for a different kind of journalism that may finally give children and families the examination of their narratives that they deserve.

 

Do we make unnecessary use of care proceedings?

This is a post by Sarah Phillimore.

This is the text of a talk I gave at the Bristol Civil Justice Centre on April 15th 2019 as part of a debate entitled ‘We make unnecessary use of care proceedings’. 

The situation regarding care proceedings in England and Wales is dire. There are various reports and worries about the ever increasing number of care proceedings with no corresponding increase in identification of those children who actually suffer harm. The worry from many is that we have created a voracious and possibly unstoppable  ‘risk monster’

EDIT – that line should read ‘ever increasing number of section 47 investigations’ rather than care proceedings. 

Various senior Judges have warned that the family justice system is close to collapse and cannot sustain this continuing increase in numbers of applications for care orders.

Much of the discussion on and off line from parents and some professionals is in very bleak terms about the sustainability of the system and the harm that it does to those who come within it.  Richard Devine commented on Twitter in March 2019:

Sometimes I wonder, in 50 years time, what aspect of the current child protection system will, with retrospection, seem incomprehensible, unethical, absurd?

The answer came swiftly from one Twitter user:

Most of it. Its harms to health, mental health and human well being will be evident and regrettable.

This is a fairly typical exchange. So I can immediately see and understand that the easy and obvious answer to this question is ‘yes’. But, as ever, I think the answer is a more complicated than the question poses at face value. And that’s why I wanted to speak against this motion. Not because I have any naive hopes that my mere rhetoric will sway anyone from their decided view. But in the hopes that you might at least listen and think about some of what I say.

All care proceedings involve failure.

All care proceedings involve failure. It is a failure of at least one of the following 3 things; the very worst cases are a failure of all 3.

  • A failure by parents to reach ‘good enough’ standard in their parenting, a failure so serious that it either causes their children significant harm or puts them at serious risk of the same. The degree of blame to be attached to this can vary from ‘none at all’ for those parents with disabilities who did their best, to a very high level of culpability which finds the parent also facing criminal proceedings, for example due to sexual assault or deliberate infliction of physical harm
  • A failure by social workers or other professionals to build a relationship pf trust with a parent who is struggling. Or worse than that, professionals who operate from untested assumption and prejudice. Or worse still, professionals who actively mislead by altering documents or lying to the court. I hope that latter example is a very small minority but I accept that even one case a year is one too many
  • A failure by the State to provide any sufficient safety net for parents and professionals who are struggling. A failure to provide and maintain support for those with poor housing, mental health struggles etc. A failure to provide safe working environments for professionals, allowing case loads to rise beyond what is sustainable or safe.

Once the case then comes to court, The court system itself often fails to deliver what we know is needed. The procedure is often not quick, efficient or humane. This puts at risk the need to have the right decisions made on the right evidence, which in turn puts in peril the child’s need to have the right placement and the right support identified and provided.  Parents are left behind at the end of it, confused, miserable and alone with no further legal support to challenge a decision they may feel is profoundly wrong.

The whole system is predicated on failures. Some of those failures are a shameful indictment of the way our society operates. Other failures are simply a reflection of the inherent frailty of human beings. We could only eradicate those types of failures by going down a road of eugenics and social engineering which only a fanatical and dangerous few would ever advocate.

Because a system ‘fails’ does that make it unnecessary?

I would like to conduct a quick and unscientific poll.

Children are vulnerable. Not all parents can be good enough parents. This isn’t about moral blame. Its about asking hard questions about what we, collectively, agree we should do to protect the most vulnerable members of our society.

  • Who in this room thinks that children aren’t at risk of death or serious harm from their parents? Raise your hand.  31 children under 16 were killed by their parents in England and Wales in 2015 – three a month – compared with 23 in 2014. 
  • Of course, deliberate murder is thankfully rare. But who in this room thinks that the State should step in to protect only those children at risk of being murdered? Raise your hand.
  • Who in this room thinks that the State should step in to protect only those children at risk of having their bones broken? Raise your hand.
  • Who in this room believes that from the age, say of 0-12 years only a parent can have any authority over the education and health care received by their child? Raise your hand. 

Unless ALL or NONE of the hands go up in answer to the last 3 questions, then we have to accept that there is room for disagreement about exactly where the line should be drawn – but the one thing I think we would all agree with – there is a line, somewhere.

EDIT – NO hands were raised. On reflection, it would have been more interesting to ask a question about the more nebulous aspects of threshold, such as emotional abuse. But it was clear that all in the room agreed that children need protection from dangerous parenting. 

The journalist Louise Tickle visited Dublin recently and discussed her visit on her Open Family Court website. She made the point that the importance of the family is set out explicitly in the Irish Constitution

 

This is reflected in many other international and domestic laws and practices. But it cuts both ways doesn’t it? If you are expecting the State to step in and defend the family as a ‘necessary basis’ of social order and ‘indispensable’ to the welfare of an entire nation, then presumably the State must have something to say about those individuals who threaten the sanctity of the family by harming members of it?

Its interesting to note what else Louise Tickle observed. One of the benefits of Ireland’s Child Care Law Reporting Project was that not only did it act to permit scrutiny of state action in interfering with families, it also allowed the public to see just how bad things could get for children

McKittrick also believes that reporting has raised society’s awareness of and sensitivity to child abuse. “Our perception is that the general public have had no idea of the level of misery that these children experience, and we can’t talk about it,” she said.

Conclusions

So no, I don’t believe that we make ‘unnecessary’ use of care proceedings. I do however think that the outcome of these proceedings is moving ever further away from what was hoped for by those who framed the Children Act. We have essentially betrayed the legacy of the Children Act 1989 by removing funding for the support services so essential to its proper operation.

As Professor Jo Delahunty QC commented after her recent lecture to commemorate its 30th birthday

The lack of financial support for community resources [and the] the rise in [applications under] s 31, they are linked. Hence the value in reminding the audience of how the Act was meant to cover community as well as court procedures with access to services, advice and support being embraced within its composite parts . However with limited legal aid for pre proceedings advice for parents , S 20 abuses , legal aid deserts for early (any!) advice in private law , court staff / judges acting as advisors and counsellors and lack of court time as we have judges working to break point: all these deficits are crippling.

Community lack of access to services and legal advice compounds an overwhelmed and overwhelming social care environment staffed by disrespected social workers , often unsupported , and inadequate managerial oversight with little joined up thinking with legal departments. I think every strand is intertwined.

Hence why I thought a reminder of what we should strive at might be timely.

Further reading

Thread of live tweets from the night #FCDebate

Children Act ‘betrayed’ in climate of cuts 16th April 2019 Community Care

You never lose the fear of the knock on the door April 2019 Tortoise Media

Care Proceedings in England: The Case for Clear Blue Water March 2019 Isabelle Trowler

 

 

In the Court of Appeal – Reporting Restrictions Order in Care Proceedings

This is a post by Sarah Phillimore.

I was junior counsel in this appeal lead by Paul Bowen QC, which was born – as is so much – from an exchange with the journalist Louise Tickle on Twitter.  It was clear from the outset that she raised an important point of legal principle and a clear failing of the lower court to abide by the law and correct procedure.

The appeal was granted today. I took a note of the judgment which isn’t perfect but which hopefully gives you the gist.  While I am happy that sense prevailed and guidance will be forthcoming, it is extremely sobering to realise this matter was highly unlikely ever to come to court without the bravery of a journalist, the willingness of a variety of barristers and solicitors to provide their time for free AND the generosity of those online who contributed to Louise Tickle’s crowdfunder – the application fee alone was a staggering £2K and for a long time the spectre of costs was apparent.

Also a very sad omission from the legal line up was anyone from CAFCASS to be the voice of the child. They had no funding. 

Equally while the court said some very nice things about the barristers acting for free in the best traditions of the Bar, it would have been good to hear some similar praise for the solicitors who did an immense amount of necessary work that so often goes unsung. The Bundle is probably THE most important aspect of any hearing; a botched or mispaginated one causes significant chaos and irritation. Insufficient attention or praise is given to those who do the very necessary behind the scenes work. 

I understand and sympathise with those who critise pro bono lawyers as those who are in effect propping up successive Government’s determination to run legal aid into the ground. But what else are we supposed to do? This appeal dealt with an important matter and it was important that it be heard. It is very necessary and frankly long overdue that the President issues general guidance. 

The most crucial comment – for me – was that of Lady Justice King. Fears about ‘jig saw’ identification appear to have become simply a button that is pressed and obviates need for any thought or analysis. Judges should not restrict press freedom to report on family cases on anything other than evidence of harm to a child. 

 

The judgment of the President of the Family Division

The court has before it an appeal against a RRO made by HHJ Levey 19 Oct 2018. Care proceedings with history of substantial litigation in family court. Originally HHJ Hess had made placement order. That Order was subject to appeal witch was granted by full court,  heard on Feb 2018. Judgment in public and reported on BAILII and in official law reports. As a result of CoA judgment the case had to be redetermiend by a different judge and that process came before HHJ Levey in the autumn. By that time case had attracted attentnion in media and 3 respected journalists appeated in court as they were entitled to do. Prior to hearing certain journalists had communicated directly to the court of their intention to attend and apply for relaxation of RRO.

Journalists attended and were not represented. As transcript makes plian the issue was dealt with relatively swiftly and Judge made order to restrict reporting of information already in public domain by way of CoA judgment.

One of the three journalists Ms Tickle lodged an application for permission to appeal which was granted. Set down in March for full day.

However, it has however come to pass that all of the parties involved are now agreed as to replacement of reporting restrictions stand in place imposed by HHJ Levey. No longer dispute with respect to appeal decisions. Appeal would proceed by consent.

Because a RRO against all the world not a matter to be dealt with simply on paper and requires this court to consider if it should replace the order.

The court therefore established a short hearing this morning to take stock of process and see if full appeal hearing required. Because the appellant Ms Tickle and those representing BBC wishes to canvass wider issues of principle and practice generated by facts of this case that go beyond terms of order.

Court extremely grateful to Paul Bowen who leads Miss S Phillimore for the very full skeleton that has been prepared that sets out legal landscape in this complicated but very important legal area that relates to transparency in the family court and elements identified by PB that should be encapsulated as guidance. BBC applies to be parties, not contested. Written submissions from AW.

Unfortunately legal funding not available from child but letter submitted. Heard counsel for LA and for child’s mother.

Issues we have to determine are narrow. Should appeal hearing be retained in courts diary in order to determine what priority the welfare of the child should have when court considering relaxation or imposition of RRO? Neither PB nor AW press for hearing in this case on that topic with any force. They are right to do so. It is a matter that undoubtedly requires full consideration but this case is now constituted that no party wishes to argue against propositions media want to make. AW submits this may not be right vehicle for this process and we agree and decline to hold hearing in March for that purpose. That hearing will be vacated and hearing determined today.

Process by which appeal is allowed. In short terms ground of appeal assert Judge gave no reasons for failing to refer to CoA judgment and fails to consider existing case law re transparency in family court. Finally and crucially he failed to undertaken necessary balancing exercise between Article 8 and 10 of EHCR.

This court has sympathy with any judge in current time faced with application such as this. Sympathy for journalists involved often appearing without any legal representation. At present there is no detailed guidance or route map as to how such applications determined. It is my resolve as President to issue such guidance at the earliest opportunity. I therefore propose to develop a draft set of guidance and to consult with various interested parties with a view to issuing.

Reading transcript indicates basic grounds of appeal would be made out. Appeal not contested. Appeal should be allowed on basis that order made by HHJ Levey re RRO was wrong, arising from procedural irregularities that I have done no more than highlight.

The order in relation to the appeal and recording BBC as appellant, appeal allowed and RRO set aside, fresh reporting restriction to be made. Draft order will be further amended and attached.
The element of controversy that remains re the draft takes me to submissions by LM. It is the case that country of origin is stated plainly in CoA judgment Feb 2018. Common ground that if possible there should be no reference to the mother’s country of origin. The question is whether the new reporting restriction order should encapsulate that by restricting repetition of country of origin and in particular by in some way of distancing any report to direct reference of case name and neutral citation of CoA and BAILII link.

My Lady and I heard LM’s clear submissions and understand the important the mother places on this information. The court however does not have any detailed information about detrimental impact on mother if journalists otherwise freely able to connect it with other information in the public domain. Court must balance Article 8 rights against freedom of publication in Article 10. In my view, given the information under consideration is already out in public domain in CoA judgment it would be wrong for this court now to prevent any step that prevents ordinary linking to CoA judgment.

I am not persuaded that the mother’s and child’s Article 8 rights are compromised to a degree that would justify any other course and I therefore refuse LM application.
I think that deals with all matters currently before the court. The appeal is allowed with orders I have described being made in due course after any drafting amendments

LADY JUSTICE KING I agree.

 

 

 

EDIT May 2019

This was a significant achievement for Louise Tickle. But perhaps the best outcome of all has been the recent announcement by the President of the Family Division that he is to conduct a review of the entire issue of openness and transparency in family cases. Watch this space!

 

Further reading

Transparency in the Family Courts: Publicity and Privacy in Practice April 2018 Doughty, Reed, Magrath

Transparency is in the public interest Guardian Editorial 15th February 2019

Tickle’s Triumph – an independent journalist succeeds in her appeal to secure the right to report on a family case – and prompts new guidance The Transparency Project 15th February 2019

The mother who lost her daughter over an EpiPen Sanchia Berg BBC 14th February 2019

Top family judge vows to clarify reporting restriction rules February 16th 2019 The Times.

Transparency in the family courts and a trip to the Court of Appeal February 19th 2019 Emily Boardman BH&O Legal

Why I fought for the right to open up family courts to greater scrutiny February 19th 2019 Louise Tickle The Guardian.

A big day in court March 4th 2019 Louise Tickle The Open Family Court

President’s precedent favours transparency March 4th 2019 Joshua Rozenberg

Transcript of Judgment from BAIILI 

Draft guidance on reporting in the family courts – consultation period closes June 30th

Press Gazette report May 2019

Happy Birthday Children Act 1989!

But have you stood the test of time?

Is the Act fit for purpose? Overwhelmingly yes. Able to use its basic structure to allow us to embrace changing concepts in society. Where it is failing is not where its ethos is flawed but because its ethos required it to be funded – to deliver services to families and communities. “

The Children Act is now 30 years old. For many family lawyers, its the only law we have ever known. Both the Act and I were young back in the distant days of 1993 when I graduated from University and went on to Bar School; becoming a fully fledged family lawyer in about 1998.  We are both very much older now and the world is very different in very many ways – perhaps most notably in how notions of family and sexuality have shifted.

Over the years I have heard a variety of criticisms of the Act. The French documentary ‘England’s Stolen Children’ had an unusual take in 2016, that it was the creation of Margaret Thatcher to ‘liberate’ the working classes and it gives children’s services the power to remove children on a mere suspicion of maltreatment, present or future. This is of course not true. For further discussion about the risk of future harm, see this post from the Child Protection Resource from a retired social worker.

However, rather more compelling criticisms have been raised over the years. Professor Devine comments that the clear lines drawn in the Act have become dangerously blurred between offering help and support with the consent of the parent/imposing coercive measures to ‘rescue’ children.  Professor Featherstone remarks upon the ‘risk monster’ that the Children Act now appears to have facilitated. More and more children are being investigated, care proceedings are rising and yet levels of child abuse are not falling.  There is also evidence of a worrying geographical disparity between levels of intervention.

Patrick Philps, a retired social worker, wrote a guest post for this blog calling the Children Act a ‘deeply flawed piece of legislation’ – his primary concern being that the Act contained a nebulous definition of what was meant by significant harm and children were being removed from their families when they should not have been. He commented:

I am not suggesting that children should never be removed, and I see the ever swinging pendulum in the process of swinging away from child removal again. However, in my view the 1989 Children Act is pie in the sky and needs to be replaced with legal standards which more nearly reflect those expressed in re B-S, that is to set realistically measurable standards to govern the protection of children, rather than to push the law into ever less measurable levels of ‘abuse’ as Robert Buckland, QC, MP, Solicitor General curiously seems to advocate (The Times, 15 January 2015). Any reliable system also needs to recognise the impossibility of predicting abuse, a lesson one may draw from Eileen Munro’s early works in which she draws attention to the mathematics of risk assessment, false positives and negatives etc, but which she proceeds to ignore in her own advocacy of its use in social work (reference needed). The mathematics of ‘false positive’ identification would indicate even higher levels of mistaken removal than some of the conspiracy theorists in the field would have us believe, but not in the least due to ‘conspiracy’.

So I was interested to know what would be Professor Jo Delahunty QC’s take on the Children Act  in her Gresham College lecture on 31st January 2019. Sadly, dire warnings of Snowmaggedon prevented my actual attendance but I was poised and ready by the YouTube Live link. 

If I make any comments of my own on the analysis offered by Professor Delahunty, they will be in italics

The 30th Anniversary of the Children Act 1989 – is it still fit for purpose?

The Children Act 1989 embodied a change in philosophy by making the child’s welfare the courts ‘paramount’ concern, moving away from the concept of parental rights towards the right of the child. It embraced the idea of shared parental rights and responsibilities and that children are best cared for within their families but not at the expense of suffering avoidable significant harm. Has the Act done right by children since 1989? Has it adapted to the challenges of childhood and society?

The Children Act has seen 6 Prime Ministers and 6 Presidents of the Family Division come and go.  Before it was born practitioners had to deal with five different Acts spanning 1933 – 1969 in a system geared very much to ‘juvenile delinquents’ so hearings were conducted in atmosphere of ‘crime and guilt’ rather than help and support. The pressure for reform mounted in the late 1980s with a number of high profile and shocking child deaths.  The core concept of the Children Act was supposed to be working in partnership; offering families support.

But society has changed dramatically in the last 30 years; it has become ‘freer and more diverse’. Has the Children Act stood the test of time?

Professor Delahunty admired the drafting of section 31 setting out the threshold criteria. When she is sitting as a Judge, the various components of section 31 has shown it can adapt to society’s changing needs; it is ‘fluid’ and ‘positively directs your attention to the child’s needs’. This is the counter to the criticism of Patrick Philips above – that fluidity is needed in order for the Act to encompass and deal with the almost infinite array of sadness and difficulties that families can face. But questions about lack of clarity of definition remain troubling and probably have been exacerbated by lack of training and funding – which Professor Delanhunty discusses further on.

Of all the components to the Act, what is most important to her is that the child is at the centre. Pre 1989 you had custody and access orders; historically the father had all rights over the child and the mother none, unless born out of marriage. The hangover of those ideas carried through to 1989 and they were pernicious. ‘Custody’ gives a strong connotation of possession and control. It is a process or arrangement that happens to people.  Also ‘access’ has strong physical connotations. It says ‘possession’ and that is exactly what a child should NOT be. Thus the Children Act 1989 made them words of the past and introduced important concept of ‘parental responsibility’.

However and sadly she notes that the new words of ‘residence’ and ‘contact’ introduced by the Children Act quickly hardened into words that parents used to denote who was the ‘winner’ and who the ‘loser’ in any dispute about seeing children – so we now have the opaque and cumbersome ‘child arrangements orders’. However, I strongly suspect the problem here will never be cured by tinkering with the names attached to various forms of orders; it goes much deeper and reveals the emotional difficulties many parents feel in navigating disputes about their children. 

An example of how the Act could adapt and apply was shown in the decision of re M involving a transgender mother who was initially denied contact with her children because of the adverse reactions of the religious community in which her children still lived. The Court of Appeal held that the court had to consider the ‘reasonable parent’ as someone receptive to change, broadminded and tolerant. A symbol of parenthood we should all aspire to. The judge had failed to address head on the human rights issues – even secluded religious communities are not exempt from the laws of the land.  This was not a set of circumstances that those drafting the Act in 1989 could have reasonably contemplated, but the court was able to respond fairly using the existing framework of the Act.

Radicalisation cases however did NOT easily fit the framework of the Children Act. Children were often making choices and keeping them secret from their parents who therefore could not easily be held to be culpable for the risk of harm a child faced. Therefore the courts revived the use of wardship for these children.  The CA was designed to make wardship redundant but we now see its resurgence. This doesn’t mean the CA has failed; once crisis passed the cases often reverted to the CA jurisdiction. This shows the need for different areas of the law to act in partnership to meet children’s needs.

Have we now got the balance right? No. Children are still dying. Herefordshire v AB 2018 ‘rocked our understanding of section 20’.  But what these examples of failures have in common is that they were matters that should have received the oversight of the court and did not. Professor Delahunty identifies not a failure of the legislation but a failure of implementation – and  this stems from lack of resources. There is lack of training for social workers, lack of resources for the child, lack of legally aided lawyers, lack of judges to hear cases. She discussed a number of high profile cases when it was only significant press interest that appeared to prompt identification of support for a child.

Professor Delanhunty concluded with the question: Is the Act fit for purpose? Her answer was:

Overwhelmingly yes. Able to use its basic structure to allow us to embrace changing concepts in society. Where it is failing is not where its ethos is flawed but because its ethos required it to be funded – to deliver services to families and communities.

She ended with a warning – we cannot continue as we are for much longer. The system is under incredible strain, there are simply not enough judges to go round and we are in danger of paying lip service to the need to listen to the voice of the child. I can only hope as we slide further into Brexit madness that there will be some time and space for our politicians in the very near future to hear and act upon this warning.

I won’t hold my breath. I agree that the Children Act is still fit for purpose – but that our political system increasingly is not.

 

EDIT February 4th 2019

Professor Delanunty kindly sent me the notes of her talk and an additional quote from our now President which she wanted to include but ran out of space.

Per Sir Andrew McFarlane in a speech to the ALC in November 2018

“”Crisis” may be an overused word and some, outside the court system, may have questioned its deployment by Sir James Munby two years ago in relation to the rise of the number of care applications being received by the courts. For my part, I consider that Sir James was fully justified in calling this a crisis and, as the continuing figures have borne out since, Sir James was plainly right to blow the whistle when he did.”

“It was integral to the ethos of the Children Act 1989 that family life should be independent and free from unjustified interference by the state. That ethos was encapsulated in the central concept of “parental responsibility”, which was reinforced by the presumption that a court order modifying or restricting the exercise of parental responsibility would not be made unless to do so would promote the child’s welfare. That statutory foundation was further underpinned by the Human Rights Act 1998. Part Three of the CA 1989 set out general and specific duties imposed upon local authorities in respect to the services that they must, or may, provide to children and families. In the context of Part Three working in partnership with those holding parental responsibility and members of the wider family was a guiding principle in the effective discharge of a local authority’s duties. The principle of work in partnership was introduced and supported by the body of government guidance issued when the Act came into force […]

To my mind the category of cases that are now coming before the court in greater numbers than was seen hitherto must, almost by definition, come from the opposite end of the spectrum of harm. They are likely to be cases of poor parenting and neglect and in such cases there is a need for the courts to be astute as to the requirements of the threshold criteria. There may be a danger of the system slipping into the exercise of a broad benevolent discretion with courts accepting the need to help children who are generally in need, rather than strictly questioning whether the state of affairs for the particular child has indeed reached the level, which the architects of the Children Act clearly considered was required, sufficient to justify statutory orders.”

“It may properly be said that we have reached a stage where the threshold for obtaining a public law order is noticeably low, whereas, no doubt as a result of the current financial climate, the threshold for a family being able to access specialist support services in the community is conversely, very high.”

Professor Delahunty comments:

The lack of financial support for community resources < the rise in s 31’s > they are linked. Hence the value in reminding the audience of how the act was meant to cover community as well as court procedures with access to services, advice and support being embraced within its composite parts . However with limited legal aid for pre proceedings advice for parents , S 20 abuses , legal aid deserts for early ( any!) advice in private law , court staff / judges acting as advisors and counsellors< lack of court time as we have judges working to break point : all these deficits are crippling. Community lack of access to services and legal advice compounds an overwhelmed and overwhelming social care environment staffed by disrespected social workers , often unsupported , and inadequate managerial oversight with little joined up thinking with legal departments. I think every strand is intertwined.

Hence why I thought a reminder of what we should strive at might be timely.

 

Want to Adopt? Review of new book by Helen Oakwater

This is a post by Sarah Phillimore. Helen Oakwater is an international trainer, coach and author. Her ‘world axis tilted’ in the early 1990s when she adopted a sibling group of children, then aged 5,4, and 2 from the UK care system. I am grateful for a chance to read and review her latest book prior to its publication. My own views about ‘forced adoption’ can be found in this post. 

In March 2012 I reviewed Helen’s first book: ‘Bubble Wrapped Children – how social networking is changing the face of 21st century adoption’ . I commented then that I thought it did the book a disservice by apparently focusing on only one element of what was making closed adoption a trickier concept as electronic communications networks grow at exponential rate.  In 2012 I said this:

The book inevitably has to cover a very wide range of topics in order to allow the reader to fully understand the full potential for harm from such unexpected contact  to children already traumatised by earlier life experiences. The author sets out to  explain the likely nature and extent of trauma suffered by the adopted child and the ways in which the child can be helped to make sense of his or her world. She also puts herself in the shoes of the birth parents and considers how they might be thinking and feeling and how this can influence their actions.

The book is thus an excellent resource for those coming new to the system and who require an introduction to the psychological theories around attachment and trauma. The author is able to present a number of quite complicated concepts in direct and vivid language, making good use of metaphor and diagrams to aid understanding; I found illuminating the example of child development as a river. Some rivers flow smoothly to the sea, others are turbulent with additional murky tributaries. Which river would you rather navigate?

For me, the key issue then (and now) was Helen’s clear analysis of the difficulties ahead for children and their families given the almost inevitability that any adopted child will have suffered some kind of trauma and loss before joining their ‘forever’ family.  Her second book takes this head on. It is called ‘Want to Adopt? How to prepare yourself to parent a child from the care system’. It will be published this spring.

The book is divided into three parts. Part 1 ‘I want my own healthy baby’ – immediately, in my view a sensible recognition of what often provides the dangerous tension in debates about adoption; providing children for those who cannot have their own biological children is a very different system from that which seeks out quasi professional parents to provide reparative care for some very traumatised children. The public face of the debate often seems to slide over this very necessary distinction and offers instead just platitudinous mantras about a ‘loving warm home’ being all you need.

Part two deals with ‘Stepping Stones’ – how to approach and deal with the necessarily intrusive assessment process that will follow into your capabilities and your motivations behind adopting. Because of the impoverished public discussion we generally have about adoption I would be very interested to know what the rates are of parents who apply to adopt and then drop out mid way or after the assessment process.  Helen identifies the very pertinent and I think over over looked point that it isn’t just enough to prepare yourself for adoption – you must also prepare those around you who may make up your support team. They will also need to make efforts to understand the challenges and complexities of parenting a child with trauma.

Part three is ‘to cross the river or not’, looking at when hope and reality collide. Chapter 13 has some useful direct quotations from various adoptive parents.  Helen focuses the discussion on the inevitability of disappointment and challenge in life and the need for an honest appraisal of how we propose to deal with this.

This is a useful and ambitious work which again presents some complicated concepts in clear and vivid language. I do find the use of quotes and diagrams useful, this is an engaging and interesting subject and it deserves a similarly engaging and interesting analysis.

As Helen says in her introduction:

‘This is one of the books I wish I had read before starting my own adoption process back in the early 1990s. I wish I had had this information throughout my journey. I wish I understood the impact of trauma in my own life and its devastating effect on the three children I adopted’.

She does not regret her decision or her children. But it is obvious that any such challenging life event is made easier to navigate with the right information, the right tools, the right people to help and guide you. My very real fear is that for far too long the debate about adoption has simply fallen between the ever widening abyss between the two polarised extremes: that children must be ‘rescued’ urgently from feckless parents where a warm and loving home awaits that will ‘fix’ them OR that any attempt to intervene to provide children with a safe and secure home is part of some murky conspiracy to line the pockets of individuals or agencies.

We need voices like Helen’s who are prepared to tell it like it is and break down this rigid and arid binary. The sentence that really jumped out at me was ‘when hope and reality collide’. So much of human misery that I see appears to stem from the often sadly vast gulf between what we know to be true and what we would like to be true. It takes a lot of energy to keep such dissonance alive. And its wasted energy. As Maslow says, the facts ARE always friendly. There is nothing dangerous or unsatisfying about being closer to the truth. The ‘truth’ about adoption may in reality be very far removed from the sanitised fairy tale of a ‘forever family’ but it is no less an extra-ordinary journey and for some children it is absolutely what they need.

I therefore hope Helen and others like her continue to speak and write and push for wider understanding of some of these fundamental issues. The better prepared adopted parents are, the more cognisant they are of the likely reality, the more able they will be to survive their journey which will be of immense benefit to them – and their children.

Of course, knowledge and preparation alone cannot magically solve all the problems – some of which are very serious and lead to the de facto breakdown of families. See the website of Parents of Adopted and Traumatised Teens for further discussion. Some adopted children will need considerable support beyond their immediate family and I have serious doubts about the availability and coherence of such support – but that’s a topic for another post!

 

 

Care Crisis Review

Today, June 13th the Family Rights Group published the Care Crisis Review report. The email sending out the press release states:

The Review confirms there is a crisis in Children’s Social Care and Family Justice Sector, explores the reasons why and sets out 20 options for change.

Over 2000 people and organisations contributed to the Review, including the Local Government Association, Ofsted, Cafcass and Cafcass Cymru, the Association of Directors of Children’s Services, the All Wales Heads of Children’s Services, third sector organisations and alliances, the Offices of the English and Welsh Children’s Commissioners, members of the judiciary, lawyers, social care practitioners, young people and families.

For further information please contact Cathy Ashley, Chief Executive, Family Rights Group. cashley@frg.org.uk

Read the report here.

The 20 options for change

  • Immediate steps that could be taken to move away from an undue focus on processes and performance indicators, to one where practitioners are able to stay focused on securing the right outcomes for each child.
  • Approaches, including family group conferences, in which families are supported to make safe plans for their child.
  • Suggestions of ways in which statutory guidance, such as Working Together to Safeguard Children, can be changed in order to promote relationship-based practice.
  • Opportunities for revitalising local and national family justice forums and other mechanisms, so that all can become places where challenges within the system are discussed and solutions developed.
  • Proposals for the Department for Work and Pensions and the Department for Education, in consultation with the devolved administrations, to examine the impact of benefit rules and policies, and the projected effect of planned benefit reforms, on the numbers of children entering or remaining in care.
  • A call for the Ministry of Justice to undertake an impact assessment of the present lack of accessible, early, free, independent advice and information for parents and wider family members on the number of children subject to care proceedings or entering or remaining in the care system, and the net cost to the public purse.
  • That the National Family Justice Board revises the approach to measuring timescales, including the 26 week timescale for care proceedings.
  • That there are improvements in exploring and assessing potential carers from within the family, when a child cannot live at home, and better support is provided to such carers and children so they do not face severe financial hardship.
  • That Ofsted and Social Care Wales in their inspections and research should take into account the duties on local authorities to support families and to promote children’s upbringing within their family.

The report also notes the £2 billion shortfall in children’s social care service and supports The ADCS and LGA’s call for Government to provide the cash, making the uncontroversial point that “Money and resources matter for families and for services”.

I don’t disagree with any of those 20 points. That there is a crisis in the child protection system is obvious and has been for a long time now. The President of the Family Division agrees.  Lord Justice McFarlane’s speech at the launch of the Review is now available online.

I first wrote this post about ‘Forced adoption’ in 2014. I have long commented upon and decried the frankly woeful state of the debate in our country about these vital issues and I have warned time and time again at the dangerous impact of those who profess to ‘campaign’ for parents.

However, I am sadly very pessimistic that anything is going to change. There can be little doubt what the problems are and little doubt about what is needed to fix them. Social workers who are not struggling under excessive case loads. Who have access to services and support for families who are struggling. That needs money. There isn’t any and there won’t be any because we have shown, collectively, as a society  – when we need to make a choice about the politicians we elect, we chose those who promise to cut taxes and hence services.

However, it goes further and deeper than that I fear. The only value children seem to have in our society is as economic actors; if they aren’t on track to achieve whatever grade is now valued in school exams, they are worthless. If they fail, its because they deserved to. Because they were lazy or didn’t try.  The culture of blame and shame which makes it so difficult for people to own and learn from their mistakes is enthusiastically promoted by politicians and journalists.

Journalists tell me that there is no point in trying to move away from sensationalist reporting and click bait headlines because ‘it’s what people want’. Even with easily available published judgments to the cases they write about, they will not provide their readers with a link to that judgment or even read it themselves.

I note with sadness that, for example, The Times offers a short comment on this review and can’t even be bothered print the correct name of the Family Rights Group.

We are really in a mess.

What’s the way out? Short of a magic money tree and shipping a boatload of politicians and journalists off to some hellish version of Love Island where they can simply rant at each other and leave the rest of us in peace, I have no clue.

All I can do is continue to operate in my sphere of influence. If we cannot make the fundamental changes to the system that I and many others think are needed, we can try and make parents and children have an easier passage through the system, to feel less brutalised by a system they do not understand or which is not well explained.

I think we do that by talking, listening and discussing. To find out what we can achieve to make things better.

The Transparency Project is again supporting #CPConf2018 and we are going to meet in London on 15th September to talk particularly about the issue of removal of children on the basis of future emotional harm. All are welcomed who have an interest – which really, should be all of us.

Bristol Family Law Scheme – reflections on the needs of litigants in person

The Bristol Family Law Scheme was established in 2015. It is made up of volunteers from local solicitors firms and chambers; there are about 30 volunteers on the current rota. Administrative support is provided by the PSU at the Bristol Civil Justice Centre. The scheme used to run weekly but now runs fortnightly due to pressure on the volunteers. There are 7 slots available from 10am – 4pm for 30 minutes each.

The scheme is directed at private law proceedings only – i.e disputes between parents about how they spend time with their children post separation.

Each volunteer was asked to complete a form detailing the type of issues raised by each client.

I have been able to analyse the forms for 57 sessions between 5th November 2015 and 28th September 2017, involving 246 people, thus averaging about 4 per session.

What follows can only be a rough and ready statistical analysis – clearly volunteers did not complete forms for each session and there are indications that it wasn’t always easy to identify a category of presenting issue. But this gives a rough idea of what are the pressing matters for those who seek to use the scheme.

English as a second language 65 26%
Likely to be in person 199 80%
Mental health problems 36 14%
Substance abuse 39 16%
Learning difficulties or literacy problems 31 13%
Immigration difficulties 13 5%
Child abduction 14 5%
Violence or sexual abuse of adult or child 130 53%
Previous proceedings 91 37%
Leave to remove 17 7%
Current criminal proceedings 10 4%
Reference to other agencies 42 17%

 

Some comments on the statistics

Unsurprisingly 80% of those attending were likely to be self representing at any future hearings. What leaps out is that a quarter of all clients did not have English as their main language and over half were describing issues of physical or sexual violence directed at either adults or children in their proceedings.

Interestingly 37% of the clients had been involved in previous proceedings which supports my view that the court is not likely to be the best arena to resolve adult difficulties around child arrangement orders.

On average, only 4 out of the 7 slots were filled at each session. This appears primarily due to clients who book a session but simply don’t attend and the reasons for that are not known.

It appears clear that the scheme meets a need for local people who are unrepresented in family proceedings. Whether or not such short advice sessions can make much realistic positive long term impact in proceedings involving such serious issues is another question and one beyond my attempts here at statistical analysis.

Family Court Information website

Every client is provided with a letter providing the address of the Family Court information website

Web site statistics show from 10 months between July 2017 and April 2018 104,890 users and 138,125 sessions. Interestingly only 2.3% of those users (2,585) were accessing the site from Bristol – a staggering 27% (29,934) were accessing the site from London. People in every major city were accessing the site and the bounce rate was a reasonable 69% – i.e. people weren’t simply leaving the site after visiting one page.

This suggests that there is considerable appetite country wide for this kind of information and a need for each local court centre to have its own online source of information.