Other thoughts

Competence and Collaboration in Care Proceedings

This is a post by Sarah Phillimore

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

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

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

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

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

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

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

Daffodil House sets out its objectives as follows:

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

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

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

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

Safeguarding in Schools around issues of Transition

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

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

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

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

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

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

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

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

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

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

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

Tanya Carter said:

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

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

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

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

Why is this legal challenge so necessary?

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

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

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

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

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

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

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

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

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

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

The interplay of ‘Gillick competence’ and ‘parental responsibility’

This is a post by Sarah Phillimore

And what are the dangers for children of ignoring this?

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

Safeguarding Children.

As a general point, safeguarding of children demands robust risk analysis. Failures in child safeguarding usually involve an inadequate risk assessment which has failed to either understand or share relevant information. Risks approached on the basis of untested assumptions are unlikely to be properly assessed. The welfare of children is generally held to be the paramount concern in most situations pertaining to decisions that concern a child, but this does not by itself absolve an individual or organisation from considering the impact of its decisions or actions on other legal rights.

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

Gillick competence

Gillick competence refers to the recognition that the capacity of a child to make serious decisions pertaining to his or her welfare will increase as does the age and understanding of that child. It derives from the decision of the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112,

Most – but not all – 14 year old children would be ‘Gillick competent’ to make decisions across a wide range of issues. Most – but not all – 7 year old children would not. Determining ‘Gillick competence’ is fact specific and depends on the circumstances of each individual child.

Once children reach 16 they are held by various statutes as able to make their own decisions across a range of issues. These are set out in the judgment of Lady Hale at para 26 of D (A Child) (Rev2) [2019] UKSC 42 (26 September 2019). For example Section 8(1) of the Family Law Reform Act 1969 provides that the consent of a child of 16 to any surgical, medical or dental treatment “shall be as effective as it would be if he were of full age”

Parental responsibility

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

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

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

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

Interplay between Gillick competence and parental responsibility

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

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

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

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

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

And at para 73:

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

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

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

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

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

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

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

Be wary: guidance and commentary which fails

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

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

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

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

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

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

If you tolerate this – then your children will be next

This is a post by Sarah Phillimore.

The end of safeguarding for children?

Young children do not have capacity to make decisions

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

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

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

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

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

In Christian Institute v Lord Advocate [2016] UKSC 512017 SC (UKSC) 29, paras 71 to 74, the Supreme Court recognised the responsibility of parents to bring up their children as they see fit, within limits, as an essential part of respect for family life in a western democracy.

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

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

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

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

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

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

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

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

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

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

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

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

There is a disclaimer:

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

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

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

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

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

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

Eliminate the minimum age requirement.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Advice is given about activism ‘behind the scenes’:

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

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

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

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

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

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

Further reading

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

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

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

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

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

We, the undersigned have experience of experts in the family courts as either professionals or parents.

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

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

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

Practice Direction 25B sets out the standards expected of expert witnesses  – see Annex paras 4 and 6.

The expert is up-to-date with Continuing Professional Development appropriate to their discipline and expertise, and is in continued engagement with accepted supervisory mechanisms relevant to their practice.

If the expert’s area of professional practice is not subject to statutory registration (e.g. child psychotherapy, systemic family therapy, mediation, and experts in exclusively academic appointments) the expert should demonstrate appropriate qualifications and/ or registration with a relevant professional body on a case by case basis.  Registering bodies usually provide a code of conduct and professional standards and should be accredited by the Professional Standards Authority for Health and Social Care (See Appendix 2). If the expertise is academic in nature (e.g. regarding evidence of cultural influences) then no statutory registration is required (even if this includes direct contact or interviews with individuals) but consideration should be given to appropriate professional accountability.

We feel strongly that the requirement to consider such regulation on a ‘case by case basis’ is potentially unfair to parents who may be acting in person and who may not initially appreciate the potential significance of a failure by any professional to submit to external regulation.

We are very concerned that parents who wish to raise significant concerns about the conduct of an expert who is not subject to external regulation, have no where to go other than the appeal process, which is clearly not a suitable mechanism to deal with the majority of complaints against an expert’s conduct.

We would be grateful if you would give our letter consideration.

SIGNATORIES as of 17th October 2019

Sarah Phillimore, Barrister

Professor Lauren Devine

Stephen Parker Senior Lecturer

Dr Sue Whitcombe  CPsychol AFBPsS

rob@voiceofthechild.org.uk

Carine Moller

Vinice Cowell

Ruth Tweedale, family law solicitor and lecturer

Alison Bushell, expert

Nicky Sole, parent.

Alice Tew

Deborah Hope

Mike Flinn , Child and Family Therapist , MBACP ( accred)

Roy Mackay, Family Law Reform Campaigner

Belinda Jones, FMC Family Mediator, AFCC Parenting Co-ordinator, GDL, LPC.

Trish Barry-Ralph ISW, expert witness

Ruaidhri Magee, Parent

Helen Taylor Social Worker

Dr Nick Child, BSc MB ChB MRCPsych MPhil Retired Child Psychiatrist and Family Therapist

Debi Richens, parent and grandparent

Tracey McMahon – Housing and Welfare Rights Practitioner

Nick Burke Social Worker

Rosie Dixon Psychologist

Alicia Leal Parent

Jennifer Cole, Midwife

Charlotta Bolton – Parent

Emma Cleaver – Parent

Julia O’Connor – Parent

Rachel Barnes

Dave Gwilliams

Amanda Hewitt-Coleman

Andrea Brougham

Rachel Gough

Simon Cushing

Shelly Wieczorek

Zainab Hassan

Tracy Stapleton Childcare Professional

Doreen Langford

Carol Newton

Lisa Blakey

Sofia Nilsson

Helen Woodhouse NHS Nurse

Emma French

Moira McCann Registered Childminder

Harriet Hughes

Maria Denny

Therese Lindberg

Samra Soliman

Izy Soliman

Marie Howell

Helen Green NHS

Hazel Rhoades

Louise Edwards

Jurate Puodz

Caroline Howe

Becci McFadyen

Sarah Tolson

Nina Coulianos

Padmini Baker

Charlotta Bolton

Lynn Aicorn

Anna Bradshaw

Heather Murray

Ekaterina Crawford

Laura Brooks Deputy Headteacher

Leah Moyse

Zoe Elisabeth

Alexander McKee

Maria Rosberg

Amanda Fakeerah

Alison Elstone

Laura Low-Douse

Sue Roberts

Victoria Cushing

Mark Howell

Nina Ayalon

Christina Lamb, parent.

 

 

 

 






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

This is a post by Sarah Phillimore.

I was sent a copy of an article this evening. It appears in the October edition of ‘Professional Social Work Magazine’ which I am told is a publication for those who belong to the British Association of Social Workers (BASW) a powerful and influential organisation which claims over 20,000 members, ‘committed to the highest standards of practice and ethics’.

The article was written by someone who did not want to reveal their identify, in order to protect that of their child, which I can quite understand. The article is titled ‘Listen to children on gender – what being the parent of a trans child has taught me’.

It is the account of a teenager who struggled with a ‘gender identity’ that did not ‘match the sex they were assigned at birth’ and how the parents supported the child to transition from female to male after the child made his wishes known at 12 – having spent ‘months, if not years’, ‘thinking about his body as wrong’.

It is a sensitive account from a parent about how they responded to their child who, on this account clearly did appear to be expressing strong views that had been held over time. I have absolutely no difficulty with this. It is clear that ‘gender dysphoria’ does exist and a small percentage of people will benefit from surgery to bring their physical body more into alignment with what they believe their body should be.

However, there will, I am equally sure, be those who profess a wish to ‘change sex’ who have other issues and difficulties that medication or surgery will not alleviate. Such intervention may have permanent and life long consequences and should not be entered into lightly. Enormous caution should be taken around ‘supporting’ a child who is not Gillick competent into making any serious decision about their lives.

And this is where the article began to make me feel very uneasy. Far from restricting it to an account of one child’s journey, it is clear that the author wishes to offer far more general guidance and does so on the basis of assertions that are – in my view – profoundly misguided and actively dangerous.

The author raises as a ‘myth’ that hormone treatments are given to children under the age of 16 or surgery is considered only at 18. Possibly she or he is unaware of the activities of Dr Helen Webberley and what appears to be a growing number of activists who demand that ‘puberty blockers’ should be available to children as young as 12. Ironic also is the fact that the CEO of Mermaids Susie Green took her child abroad for surgery when the child was only 16.

Offering up these age limits of 16 and 18 as some kind of inviolate barrier beyond which people cannot pass is simply naive – particularly given the inevitable ‘drive’ for increased intervention at a younger age as that will make it easier for a child to ‘pass’ – particularly a boy who wants to become a girl.

But my real fears are raised by the ‘bullet points’ at the end of the article

  • Just because a child is telling you they are transgender, does not mean they are too young to know this
  • Its not possible to force a child or young person to be trans
  • parents supporting their child in their gender identify is not a safeguarding issue

I wonder if the author of this article has read the judgement in Re J?  I wrote about this in more detail in this post – In whose best interests? Transgender children: choices and consequences – and the issues around bear repeating here.

This is an important case – J (A Minor), Re [2016] EWHC 2430 (Fam) (21 October 2016).

The Transparency Project wrote about the case and the media response here and summarised the court’s approach in this way:

Mr Justice Hayden heard the case over a number of days in the summer and, based upon the experts and professionals whose evidence he heard (along with that of the mother herself), the judge concluded that J was a little boy whose mother’s perception of his gender difference was suffocating his ability to develop independently – and was causing him significant emotional harm. He was placed with his father, where he quickly began to explore toys and interests that were stereotypically “boys”. The judgement is very clear that the father had brought “no pressure on J to pursue masculine interests” and that his interests and energy were “entirely self motivated” (pa 47). So, not forced to live “like a boy” (whatever that means) – but choosing (there is more detail in the judgment).

Importantly, Hayden J acknowledged that there are genuinely children who are transgender or gender dysphoric, and who present in this way from an early stage, but – and here is the crux of it – this child was not one of them. This was all about the mother’s position.

At para 63 of the July judgment, the judge commented on the expert opinion of the mother and how she presented:

When stressed and distressed, [M] becomes controlling, forceful and antagonistic. This reflects her underlying anxiety. She is actually very frightened and upset. She tries to sooth herself by taking control of situations but her interpersonal style is counter-productive. She does not negotiate well. She finds it difficult to compromise and situations become inflamed rather than de-escalated. In situations of interpersonal conflict, she protects herself from loss of confidence or face by unambiguously perceiving herself as correct which means that from her perspective, the other party is wrong. To acknowledge her flaws, even to herself, feels crushing and devastates her self-esteem so she avoids this possibility by locating responsibility and blame elsewhere. When she is unable to achieve the outcome that she wants, she resorts to formal processes and/or higher authorities: complaint procedures, The Protection of Human Rights in Public Law, the European Court of Human Rights, Stonewall and so on.”

It is clear that the mother was insistent with all agencies that J ‘disdained his penis’ and was being subjected to bullying at school etc. She could not provide any proof of this and the school denied it was happening. She was supported throughout by Mermaids who played a significant role in the development of a ‘prevailing orthodoxy’ that J – at 4 years old – wished to be a ‘girl’. That view was found by the court to have no bearing in reality and was a product of both ‘naivety and professional arrogance’

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

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

No one and no thing is exempt from safeguarding

I am profoundly worried by that last bullet point in the article – “parents supporting their child in their gender identify is not a safeguarding issue”.

The mother in re J was supported throughout by Mermaids, who issued an angry press release after the judgment and said there would be an appeal. There was not. The author of this article refers its readers to Mermaids as a useful resource.

It is surely the antithesis of any responsible social work or safeguarding policy to set up groups of people or particular issues that are immune from examination or critical regard. While the author’s 12 year old child may have thought long and hard about the issue and demonstrated his Gillick competence beyond doubt – I suggest the same certainly cannot be offered with regard to a 4 year old. But is the issue of ‘trans’ now off the table for social workers? Whatever the child’s age or level of understanding – if he or she declares they are trans, then that is that? No further investigation or assessment is required? How can this be right? How is this good social work?

I am really worried about this. I would be interested to hear from other social workers about what they think, and how they would approach a case involving a very young child who wished to embark upon a path of ‘changing sex.’

 

 






After 5 years as a ‘crusader’ I am admitting defeat – and this is why.

In 2014, with the support and encouragement of mumsnet users I set up the website Child Protection Resource online. We had considerable concerns about the lack of reliable information which was easily available for parents facing care proceedings and real fears about the way in which people in positions of authority and power seemed happy to promote false narratives to make people afraid.

I had such high hopes. Surely all people need is to see the facts set out before them, clearly and simply and all will be well! In pursuit of this dream I organised 3 multi-disciplinary conferences in 2015, 2016 and 2018.  It seemed to go well. The first conference was a genuinely energising and positive experience when for the first time parents, social workers, experts and lawyers gathered in one room to speak honestly about their experiences in a system of children protection that we all agreed was not working and was brutalising those within it.

But as the years went by, my naivety has been revealed for what it was and my enthusiasm has dimmed. It is clear to me now that professionals do not operate in isolated silos, failing to engage with others, because they are forced to – it is because they WANT to.  Stepping out of your comfort zone and facing some hard and uncomfortable choices about your profession and the choices you make within it is very difficult. I can see why many are simply unable to do it.

And that’s ok. I am not here to berate people for not being willing to risk their homes and their jobs on some crusade. I appreciate it is very difficult for many to speak out. Family cases are particularly difficult to engage with in public due to the many necessary rules that exist to protect identification of children.

So I get that. But I wasn’t asking people to be warriors. I was asking people to be authentic. To be honest. To connect. And it is sadly clear to me now that this is never going to happen. There are not merely the concerns about possibly being in contempt of court – which I quite understand – but there is something much darker going on. A lack of honest recognition of problems and difficulties because this might challenge a prevailing orthodoxy or a funding stream or a personal ‘brand’ – or simply be embarrassing.

And I will not be complicit with this. Because I think its really harmful. Not only to the possibility of driving forward any real change to a brutalising system, but because there are real people – real children – who get ignored if people are more concerned about embarrassment and saving public face than they are about engaging with what is going wrong.

As I have already indicated, I have withdraw support from any journalist who wishes to campaign to open up the family courts, as the last five years have shown me that journalists are either unwilling or unable to accept the harm they do to this area in particular, by click bait appeals to the lowest common denominator.  I will no long be willing to sit in conferences and talks by social workers that preach the importance of relationships when key members of that profession seem unable or unwilling to recognise that the fundamental building block of any relationship is honesty and trust. I will not sit by in silence when even the Ministry of Justice does not appear to understand its own system of laws and I will continue to object very loudly to those who push fake and partisan narratives at the expense of the rule of law.

I will keep my site going and updated. For the parents who may benefit from it. No parent is responsible for this system and its failings. No parent should be asked to care about this. They need a system that can operate fairly and efficiently, to either remove those children who need protection their parents cannot give in the least cruel way possible, or to step away from those families who have unfairly been the subject of state scrutiny. Better yet, not ever have to engage in punitive measures against families which may have been able to make it with some guidance and support.

I have been deeply disappointed by the last five years. But I don’t regret for one moment embarking on this experiment. It has opened my eyes and my mind and both before were, to a large extent, closed. It has enabled me to meet many people of great wisdom and courage that I would otherwise never have met. To all of them, I offer my thanks.






The Migrant Child with no Recourse to Public Funds

I am grateful for this guest post by Hal Fish who is a content writer for the Immigration Advice Service; an organisation of leading UK immigration solicitors that help migrant families regulate their immigration status.

Whilst there are numerous issues that affect and damage the many migrant families of the UK, the welfare of migrant children is a profoundly troubling matter which continues to be overlooked in mainstream media. Migrant children are being thrown into a state of vulnerability due to the immigration status of their parents. Street homelessness, poverty and other forms of dejection are rampant issues for these children as they grow up without access to the same public funding as those with British Citizenship.

The main reason causing this problem is the ‘No Recourse to Public Funds’ (NRPF) condition. Coming from theImmigration and Asylum Act 1999, the clause states that if a person is ‘subject to immigration control’ they will have ‘no recourse to public funds’.Without standard routes to public funding, the only support left to the children of migrant families can be found in Section 17 of the 1989 Children Act. This act places a duty on local authorities to safeguard and promote the welfare of children ‘in need’ in their area. This one source of provision has become a safety net for underprivileged migrant families; sadly, however, the children keep slipping through the many gaps of that net.

It seems that the government’s commitment to creating a ‘hostile environment’ for migrants is being prioritised over the commitment to providing safe living conditions for children in need. The Home Office have shifted their responsibility to support these children onto local authorities. However, pressures of austerity and other budgetary restrictions have left such authorities reluctant to provide financial support. With these limitations in mind, tactics such as misinformation, intimidation and unfair judgements on credibility are being employed by local authorities as to withhold their funds from impoverished migrant families.

It was found by Project 17, an organisation working with migrants fixed in the NRPF condition, that 60 percent of its clients were wrongly refused assistance when they initially contacted their local authority. On top of this, 22 percent of families were wrongly refused support on the basis of their immigration status. Habitually the reasoning for these refusals are arbitrary and baseless, often decisions are made before assessment is even conducted. Many families have been incorrectly informed that by requesting support under section 17 they were trying to claim ‘public funds’, whilst others have been told they can only be supported if they have leave to remain in the UK. One of the main problems is that local authorities seem much more concerned with trying to catch parents out for fraud as opposed to actually assessing the considerable needs of the children.

And even when support is granted, there is no statutory guidance on the rates of financial support provided under Section 17 of the Children Act 1989. This means that there is no set figure to determine exactly how much money families should be given. Different children have different needs, and therefore discretion should be used when judging just how much financial aid should be offered to each case – for instance, some children will have greater medical bills. But regardless, families with NRPF are overwhelmingly in need of basic level of financial support as to provide accommodation, food and other essentials for their children. Yet the Children’s Society found that some families received lower than the asylum support rate of £36.50 per person per week – a figure nowhere near the level required to alleviate destitution and one in breach of human rights law.

A report by Project 17, spoke to children living with NRPF and found that 41 percent of them felt unsafe as they were ‘homeless’, ‘moving around a lot’, ‘living with people they did not know’, ‘uncertain about their housing situation’, and ‘travelling long distances to school’. It’s clear that not enough is being done to keep these children safe and supported. Social worker and researcher Andy Jolly brought home this point when he recently said: ‘the death by starvation of Lillian Oluk and her daughter Lynne Mutumba in March 2016, while being supported by a local authority under section 17 of the Children Act (1989), illustrates the consequences of inadequate support for undocumented migrant families in the hostile environment.’

Worryingly, there is very little evidence to suggest a change in the Home Office’s or local authorities’ approach to families with the NRPF condition. Yet the number of families requiring support under section 17 has steadily been rising for years now: between 2012 and 2013 it rose by 19 percent. To exacerbate troubles, the Home Office have proposed cuts to asylum support contained in the Immigration Bill 2015. Which means, if passed, the number of children who rely on section 17 will increase as there will be even less financial support for them from other means. And rules such as those contained in the Immigration Act 2014, which limit rented accommodation to those migrants who have the ‘right to rent’, will lead to homelessness amongst migrant families; once more creating a greater need for section 17 support.

Ultimately, while section 17 support does provide a thin layer of protection for thousands of children in the UK, it does not offer enough. With minimal guidance given on how assessment should be made, and support administered, there is too much reliance on the discretion of local authorities; who often work with other (namely financial) concerns prioritised. There must be more done to fight against the harrowing circumstances and impoverished lifestyle that these vulnerable children are being exposed to. It is imperative that the government implements a consistent and adequate structure of support for migrant families living with the NRPF condition; one which is capable of offering the necessary level of provision for the children overwhelmingly in need.

 

Further Reading

Financial and Housing Advice.

Hackney Migrant Centre guide to section 17 – The guide contains information, advice and guidance gathered from those who have experience of seeking this kind of support. The guide covers an explanation of section 17 support, the child in need assessment, what support might look like, what happens if support is refused and a helpful evidence checklist. The guide also contains signposting to partner drop-in’s and immigration advice sources.

 

 






Can you challenge a finding of fact in a family court?

This is a post by Sarah Phillimore

TLDR; yes  – but its difficult. Don’t rely on being able to challenge a finding after it is made – it is far, far better to challenge it at the time of your court case, if you have all the available evidence.  

However, if you discover evidence after the hearing that shows the findings have been made on an inaccurate basis, it is clear that there is a mechanism to challenge this. 

So anyone who asserts the the Judge ‘got it wrong’ at their hearing and they have the evidence to prove this – ask yourself (and them) why they haven’t asked the court to look at this. 

in cases involving children, it is clearly very important that decisions about their welfare are based on sound factual findings. See W (Children), Re [2009] EWCA Civ 59. But what does a parent do if they think the finding of fact was made on the wrong basis?

Section 31F(6) of the Matrimonial and Family Proceedings Act 1984 was inserted by the Crime and Courts Act 2013, section 17(6), Schedule 10, paragraph 1 and came into force on 22nd April 2014.  It gives the Family Court the power to “vary, suspend, rescind or revive any order made by it”. it’s an interesting provision as that undermines the principle in relation to finality of judgments and orders – but which itself is in tension with the principle that decisions about children, which have such long lasting consequences, should be made on the soundest footing.

in the case of Re E (Children: Re-opening Findings of Fact) [2019] EWCA Civ 1447 the  Court of Appeal held that the Family Court had the statutory power under the Matrimonial and Family Proceedings Act 1984 s.31F(6) to review its findings of fact at any time.

In this case, the children were removed from the mother’s care, after the youngest was found to have cigarette burns on her arm. The mother said it was an accident but her accounts were inconsistent. In the criminal investigation, the police medical evidence supported the mother and said she offered a plausible explanation for accidental burns. The mother then got permission to appeal out of time on the basis of that report.

The Court of Appeal found that a finding of fact was not “an order” in the strict sense of s.31F(6), but it could be appealed if it was integral to the order on which it was based and therefore came within the scope of section 31F(6). A finding of fact that the mother deliberately hurt her child was clearly integral to the order made to remove them.

Nor did section 31F(6) express that it was limited to a particular time after the hearing, given that findings of fact often have longstanding consequences for children and their families.

The court refused to follow G (A Child), Re [2014] EWCA Civ 1365  where the judge commented that when a sealed order, after a fact finding hearing, is challenged then that challenge must be to the appeal court and the mother should not have been allowed to apply to the first court to re-open factual issues.

However, the Court of Appeal in Re E dismissed the mother’s appeal and found she should apply directly to the trial court – the trial court was more likely to be in a better position than any appeal court to assess the true significance of the further evidence and was likely to be able to deal with the application more quickly and cheaply.

Applying to the first court to look at its findings again.

So if a parent wants to review a finding of fact the approach is set out in Re ZZ, (Children) (Care Proceedings: Review of Findings) [2014] EWFC 9;[2015] 1WLR 95.This case adopted a three part test first set out by Charles J in Birmingham City Council v H and Others [2005] EWHC 2885 (Fam):

  • the court must consider whether it will permit any challenge to the earlier findings
  • it then has to decide the extent of the investigation and evidence heard by the review
  • then it hears the review and decides whether or not the earlier findings still stand.

The court will not get beyond the first stage unless there is some ‘real reason; to believe that the earlier findings can be challenged. ‘Mere speculation and hope’ are not enough. The over arching question for the court will be whether there was any reason to think that a rehearing would result in a different finding,

Appealing to another court to about the findings

Or a parent could appeal based on further evidence but this might need an application to extend time, as applications to appeal have strict time limits.  Pursuant to CPR r.52.21(3) an appeal to the Court of Appeal would be allowed where the lower court decision was either wrong or unjust because of a serious irregularity.

Under r.52.21(2) any evidence not before the lower court would not be admitted without permission, looking at criteria in in Ladd v Marshall [1954] 1 W.L.R. 1489

  •  that it hadn’t been possible to get the evidence for use at the first hearing
  • if heard, the evidence would have had an important impact on the case
  • and the evidence was credible.

An appeal was allowed against a judge’s decision in Re A (no 2) (children: findings of fact) [2019] EWCA Civ 1947 where the Judge came up with his own ‘theory of the case’ that had not been argued before him and which was not supported by the evidence.






Feelings and Dogma cannot set the agenda in Family Justice

Sarah Phillimore: I am grateful to FNF for this guest post. While I do not always agree with what this group says or how they frame it, they at least make the effort to explain and evidence their assertions, for which I am grateful. I certainly prefer their approach to the polarising and unevidenced assertions that this discussion appears to encourage from many on ‘both sides’. I remain convinced that the only respectable conclusion the Inquiry can reach is the urgent need for reliable data. Otherwise it seems we will be doomed to spin this wheel for many more years to come.

The Response of Families Need Fathers to the Family Inquiry Panel

Families Need Fathers @FNF_Media www.fnf.org.uk ‘Families need Fathers – because both parents matter’ is a UK charity founded in 1974 to support the welfare interests of children when families separate, with a focus on parents struggling to secure reasonable or indeed any parenting time, in the absence of good reasons. We believe that the best interests of children would be served if there were a rebuttable presumption of shared care. We aspire to a situation where most children enjoy joint care of their separated parents the benefits of which are supported by research where such arrangements are the norm.

Examples of conflict from our front row FNF speak to tens of thousands of parents a year who come to us for help. We also receive feedback from many lawyers, McKenzie Friends and litigants of their experiences. So here is a cross-section of the kinds of scenarios that we see.

  • After separation, all was working well. When mother got a new boyfriend, all contact stopped.
  • When father got a new girlfriend, mum first insisted that he could not have the children in her presence and stopped contact. When he took her to court, she alleged inappropriate, sexualised behaviour in front of the child.
  • When dad lost his job and reduced child maintenance, mum said “no money, no kids”.
  • When dad had a job and paid child maintenance, mum said “more money, or no kids”.
  • Mum refused to put dad on the birth certificate and threatens no contact, so dad applies for Parental Responsibility.
  • Mum beat dad regularly, when be plucked up the courage to tell the police, she alleged sexual abuse.
  • She found out he’d had an affair then phoned the police alleging abuse to get him out of the house.
  • She slapped him repeatedly in an intense argument. When he pushed her away she phoned the police.
  • He said he would leave, but she threatened him with not seeing the children.
  • Both parents were aggressive to each other when drinking.
  • Both smoked cannabis, but upon separation mum claimed he was the only one who did it in front of the child.
  • He was an alcoholic. There was a violent incident where he hit mum many years ago whilst drunk. He’s been dry since then and the main carer of the child, but now she has applied for legal aid on the basis of this incident.
  • Separated father reported the mother to social services when a drug dealer moved in with her and the children. She assaulted him when he came to collect the kids, called the police and claimed he’d carried out the assault.
  • Mum suffers from a mental health conditions that cause her difficulty in seeing things with clarity. Or, mum has been the victim of a horrendous abuse herself causing her to feel fearful in situations where she would not have otherwise.

All these of incidents could have happened with parents’ roles reversed of course. All form part of the varied situations that family court judges have to deal with. In each, there will be two sides to the story with varying degrees of supporting evidence. It is the role of the judge to (a) decide whether the facts of each of the claims being made are relevant to the safety of the child and (b) weigh-up the evidence and decide which is more credible when evaluating the risks.

The ‘paramountcy principle’ means that their decision has to be based on the best interests of the child taking into account identified risks from each parent. Charlotte Proudman, in her Guest Post of 3rd July 2019 for the Transparency Project makes a range of suggestions as to what is wrong with family justice (and there is much that is). However, her assertions appear to be based, at best on her experience of being a self-proclaimed ‘feminist barrister’ (and hence unlikely to see a typical cross-section of cases) and at worst on dogma.

Claims, for example, that the majority of cases stem from safeguarding concerns relating to family abuse are precisely what it is the judge’s job to decide based on evidence. Both sides are likely to make such assertions. Similarly, claims that Cafcass documenting of allegations of father’s controlling behaviour being discarded are also problematic. If a judge ignores a report in which there are concerns, that would be a basis for appeal. A judge may well dismiss the allegation because the evidence provided by the father was stronger than that offered by the mother, perhaps compelling. It could be that there was evidence of the mother or both parents exercising inappropriate controlling behaviour over the other, the nature of which (a) was unlikely to manifest itself now they don’t live together or (b) is insufficient to warrant placing the child into care.

The current move is to ‘ban abusers from having contact with their children’.

The definition of domestic abuse has been broadened recently. It includes shouting and

aggressive behaviour so the other parent is frightened. Such behaviour is fairly common by both parents who find reason to find fault in each other prior to or in the throes of separation. If that were the ‘abuse’ that has taken place, one would hope that nobody would suggest that neither, or either parent, should be stopped from parenting the child.

However, few studies have gone so far as far as to determine how many of these allegations were found to be irrelevant to the matter before the court, how many involved mutually inappropriate behaviour and how many had findings to support the allegation or that they were unfounded/fabricated. One relatively small-scale one by Professor Tommy Mackay at Strathclyde University concluded that as many as 70% of cases were found to be false or unfounded. Founder of Women’s Aid, Erin Pizzey, reported that more than half of women in the refuge she ran were in mutually abusive relationships and sometimes behaved worse than the men. We would hope that those who claim that false allegations are rare might support our call for truly independent research on a larger-scale into the prevalence and nature of false allegations and exaggerations in the context of Children Act disputes.

For now, one thing we do know is that Professor Liz Trinder, of Exeter University, carried our research that assisted the Government in its decision to table the ‘No-Fault Divorce’ Bill that is currently going through Parliament. The report quotes a range of authoritative sources e.g. The Law Commission saying that the ‘system still allows, even encourages, the parties to lie, or at least to exaggerate, in order to get what they want’. Does anyone suppose that when emotions are raw, people are angry, feel jealous and hurt, and stakes high (access and parenting time) that the propensity to lie and exaggerate might be any less?

If we then add to this cocktail that since 2013, when LASPO was introduced, a condition of qualification for Legal Aid in private family disputes was the making of allegations of domestic abuse. Whilst the majority of such claims are likely to be genuine, a significant proportion – that we estimate in thousands per year, are obtained on the basis of false allegations and exaggerations – on issues that do not then even feature in subsequent proceedings.

The statistics imply this. The growth of complaints of this amongst our service users supports this and we are now hearing of this increasingly from the judiciary too. The former President of the Family Division, Sir James Munby, said “One of the greatest vices of our system… is the unfounded allegation which festers around and poisons the process”. He should know!

Parental Alienation

Interviewed on the Victoria Derbyshire Show on 15th May 2019, Charlotte Proudman spoke of a view that “women lie” and that Parental Alienation being a “new term” that “really turns my stomach”. In her article, she suggests there is ‘scant scientific research’ into it. Except, firstly, nobody is suggesting that only women lie. Men and women can and do and it is up to the court to determine whether and who is lying. Secondly, Parental Alienation has been recognised under those terms since the ‘80s (as well as studied earlier). Thirdly, bad-mouthing and the many other behaviours that form part of what is now known as parental alienation existed well before the term was coined and were every bit as damaging. Fourthly, there is a significant and growing body of research into it and the World Health Organisation, (WHO), who don’t take decisions lightly, has just recognised it too. Whatever the research, one hopes that it is not too contentious to say that parents who enmesh the children in their feelings and paint their other parent as a monster are not putting their children’s needs first. They are doing harm to their own children that is certainly equivalent to other forms of child abuse. That, and all forms of abuse, should be a concern for all of us to jointly develop solutions for. To deny parental alienation and alienating behaviours is a danger to children.

As we are not saying that all women lie any more than all men do, neither should it be surprising that parents who are accused of abuse might seek to use parental alienation as a form of defence. The role of the court, however, has to be to use evidence to distinguish between the different causes of a child’s rejection of a parent, including undue influence by the other. A dogmatic failure to consider this possibility would in fact leave the child at risk of ongoing abuse that will damage them for life.

The reality of some 6,000 applications being made each year for enforcement of Child Arrangement Orders that have not been complied with tells its own story. As does the fact that courts often give up in these situations and make orders for Indirect Contact only i.e. sending cards, letters and gifts (see article in Family Law).

Prevalence of Abuse and How to Make Progress

At FNF we note that there are men who are perpetrators of horrendous abuse, just as there are women who do so. Ministry of Justice data reports that around two-thirds of domestic abuse (65%) is against women and a third (35%) against men (695,000). We might also argue that there is evidence of more men under-reporting. The point is, whatever the precise figures, every victim who is being harmed deserves to be supported by the courts and other services. So does every victim of false allegations – the latter do tremendous harm too. We need to create a culture that drives out all forms of abuse against everyone. It will happen when we all seek to understand each other’s problems and reach out for balanced facts and research. That is less likely to happen if those whose voices dominate the discussions on domestic violence continue to seek to make this into a gendered debate. A divisive approach seems unlikely to succeed and real progress will happen when men support women who are victims and vice versa.

Review of Protection in Family Justice May 2019 saw the culmination of an organised, effective lobby from a number of women’s rights activists and organisations seeking a review of family justice based on a narrative suggesting that family courts are granting ‘contact at all costs’, resulting in dangerous men having unsupervised contact. This is patent rubbish. At that time 123 MPs were persuaded to sign a call for an independent inquiry into this frightful alleged occurrence. An entire one hour Victoria Derbyshire Show was dedicated to this ‘scandal’ and subsequent shows continued to address this narrative. The ‘research’ carried out by the show found four cases in the last four years where a father had killed a child whilst on contact. The problem was that it was selective and did not look at children killed by mothers – of which, sadly, there are many.

As if to highlight this point, only last week a Serious Case Review was published following the murder of a five-year-old boy, whilst on contact with his narcissistic mother on Father’s Day. She left a note to say ‘If I can’t have Leo then nobody is going to’. One of the recommendations of the report was:

‘That Kent Safeguarding Children Board and the Kent and Medway Domestic Abuse Executive Group develop an increased understanding of the needs of men as victims of domestic abuse and what this means about the nature of services that should be provided for them.’

If we are to make the world safer for children and adults alike, it will not be achieved by men and women working against each other, but in seeking to understand the underlying issues without being led by feelings, ideology and dogma. The Government rejected an independent inquiry, but did announce a more limited review. The need to create trust amongst both men and women remains. The current make-up of the review panel is 10 women and one man. It includes a representative of Women’s Aid and not one representative of men’s or fathers’ organisations or those with experience of false allegations. Consequent recommendations will affect fathers, mothers, and children including, in all probability, those where there are no domestic abuse considerations.

In summary – there is a desperate need for a review of family justice, but this narrow, gendered exercise with a very unrepresentative panel is not the right approach.