Other thoughts

Residential Care for Children in England – A reader’s perspective

I am grateful for this contribution from one of our readers, who was inspired to write following publication of Martin Narey’s recent report into Childrens Homes. Should more of the money currently being used to provide residential or foster care for children be used to support families instead?

 

A Relative’s View on Children’s Homes

If you ever meet a strange person gingerly crossing a wooden bridge looking as though they think they are going to fall through the gaps that they couldn’t possibly fall through that is probably me.It is as a result of a childhood trauma of having to cross a wooden railway bridge going to visit my half brother in who lived apart from me in a Children’s home. I both loved visiting and hated leaving without him believing as small children do that it was my fault that he was there.

He was placed in the home aged 2 by his father when my Mum fled from what would now be called coercive control. My Mum was told by what was then Social Services that she had no say in the matter and there was never a court case. There was no social services involvement at all in my childhood, but the impactof being apart my brother has been lifelong has now spanned three generations.

 

My Observations:

Children in children’s homes are more likely to be living away from their local communities than those in foster care (37% are placed more than 20 miles from home and outside their local authority) Recommendation 7: I urge local authorities and consortia to be cautious about following any hard and fast rule about placement distance and to recognise that the right placement for a child is more important than location. They should no longer impose geographical restrictions on where homes must be located in order to be included in contracts.

This really does not work to maintain family ties and it seems to be a secondary consideration. These family ties once stretched are very difficult to strengthen again, my Mum describes the tie to her son as thin as a thread. I myself know very little about my brother’s childhood as he doesn’t speak about it. Isolation is a key factor in development of mental illness and children leaving care are very likely to be isolated.

 

The average weekly cost of a place in a children’s home is approximately £3,000, with little difference in cost between local authority, voluntary sector and private sector provision

My Mum needed support not condemnation, in her day single mothers were scorned, she soon got her self straight, but even then wasn’t allowed to have her son back. I really do not see any change today time and again we hear some Local Authorities would rather shell out this average of £156,000 per year rather than support parents with much lower outlay.

 

But fostering is the right choice for most children who cannot return home, enter special guardianship, or who are unsuitable for adoption. And local authorities must treat it as the first option, not least because it is much less expensive than residential care. According to DfE, the average cost of foster care has been estimated at around £600 per child per week compared to around £3,000 per week for a child living in a children’s home.

My brother stayed in the same home for 14 years, I do not know if fostering was considered at all. Today I do not believe that all Local Authorities consider fostering as a first option especially if a child has special needs, yet they will wriggle out of their obligations to provide support to such familes which would stop problems escalating to crisis in the first place.

 

“In 2014-15, eight commercial fostering agencies made around £41m profit between them from providing foster placements to local authorities. This is pure profit. It’s after allowances for foster carers, staffing costs and support services… The fact that £41m of public taxpayers’ money, allocated to support children in state care, actually ended up in the pockets of … some seriously rich capital firms is obscene.”

I agree with the last word. Imagine what £41m could do if used to support families.

 

The Howard League believe that children are “pushed into the criminal justice system by homes which are supposed to be helping them.”86 And the Prison Reform Trust (PRT) – which published its own report on this subject just a few weeks after the Howard League – was reported as saying that “children in care are sucked into the criminal justice system for trivial reasons.”87 It is a pity that statement did not reflect the more nuanced conclusions of the PRT report, because, like the Howard League assertion, I believe it to be unfair. The Prison Reform Trust’s laudable aim is that children in residential care – as far as is possible – are diverted from the criminal justice system and, particularly, from custody.

Sir Martin Narey does not believe that children are being criminalized, this is actually what I find to be the most disturbing part of the report. From my experience they most certainly are for the most trivial of reasons and they are victims of crime within the homes.All is not rosy.

 

Alongside this:

Recommendation 16: The Department for Education, in consultation with Ofsted, needs to reconsider their guidance – taking account of recent Court judgements – to ensure that staff are able to keep children safe by preventing them leaving homes at time of danger, either by locking doors or using restraint, and that they can be confident in the legality of their doing so.

I do not know the legality of these measures, but I can see them being open to abuse.

I know from my family situation, being brought up in a Childrens home is certainly no substitute for family life, it leaves deep scars on the child, siblings , parents and grandparents. No matter how many decorations are put up pronouncing home is where the heart is or other such sentiments it is not the ideal place for a child to grow up in. It is rarely stable, there are many moves and children grow up not having the first clue about family life. It really is time for a policy change, to start using some of the obscene costs to actually support children and familes.

Screaming “Corruption” won’t address the real changes that need to be made.

This is a post by Conference on Coercive Control, an individual who wishes to remain anonymous. I am grateful for the time they have taken to write this post, in an attempt to move forward the debate about the family justice system to a more constructive arena. There are things we can do to improve matters; we should not be doomed to simply shout at each other from our different sides of the divide. Rather than continue to put the focus on a ‘corrupt’ or broken system, we need to be looking at what we could practically do, to make things better. 

It has become almost commonplace for the words “corrupt”, “secret” and “family courts” to be conjoined in a splenetic invective centring on children snatched from loving parents by conspiratorial social workers pushing a forced adoption agenda or by fathers denied their rights to see children due to alienation or contact denial. A system oft described as ‘broken’ where lawyers become rich on decisions made behind closed doors in “secret” family courts.
‘200 children cruelly lose contact with their fathers every day in secret family courts” claims a fathers rights group, whilst elsewhere, headlines talk of parents fleeing the country to escape local authorities intent on removing children. That the family justice system is callous, corrupt and broken is an oft repeated refrain in certain circles and I imagine many people throwing up their hands in despair and those about to enter the process terrified by what they are about to face.

It is not just angry parents who feel the system is failing. Professionals wade in adding fuel to an already intensely burning flame yet not everyone involved (professionals included) have the full facts to hand so the discourse quickly descends into an embittered exchange of poorly-informed rants instead of becoming a discussion on how effective changes can be made so that a system that is struggling can improve.

Don’t get me wrong. I understand anger. I also understand the mistrust of the local authority. Having been in a situation where I nearly lost my children to adoption due to a false allegation, having been involved with a person so devious, he maintained a campaign of blackmail and control for years, keeping it well below the radar to near-devastating effect and having had my mental health questioned so often even though, to this date, I have never been diagnosed with a psychiatric illness.

Yup, I know all about anger and all about professionals misreading a situation of smoke and mirrors.
But before talking further about these so- called “corrupt” family courts…

My experience of the family court system

a little bit about me…
Without delving into specifics, I have been in the family court for over 30 hearings. For about 20 of them, I did not qualify for legal aid. Although there was proof of domestic violence I did not pass the means test and so represented myself as a Litigant in Person. I can honestly say that the whole experience was one of the most traumatic of my life. It was all-consuming and for nearly 2 years it dominated my life as I learned to become a lay lawyer. Each time the postman came, I held my breath. I waited with dread for yet another court application to drop on the mat. Each time the phone rang I would freeze. Panicking if it showed a withheld number fearful of yet another fictitious allegation made to the police and designed to send me into a tailspin. To this day, I still hold my breath when the post van arrives and keep holding on whilst I walk (slooowly) to the front door. His need to keep making applications is ongoing and so I wait. Old habits die hard.

I learned to represent myself when I was still recovering from his abuse so was often prone to floods of tears. Having to manage my own case file with all the information still raw and searingly painful and against a backdrop of a pending criminal investigation was far from easy. There was literally no escape, no mental escape from the trauma, no escape from the flashbacks, the nightmares. Living on “high alert” with the constant fear that he would return to the house to break in again and this time with more than a crowbar. There was certainly no escape from the ever growing pile of paperwork that was threatening to take over the house and no escape from the reams and reams of paperwork he sent me as part of his statement with information designed to deeply humiliate me in court to deflect from what I was saying. I swear that year my stomach had taken up temporary residency near my tonsils.

I was very, very lucky in that my wonderful SOIT arranged for support to make sure I was ok and so I received extensive counselling, some weeks I had 5 hours and I needed it. It was this support that gave me the strength to carry on. It was a God-send to know that if I couldn’t cope, it was only a day or two until therapy. It helped me focus.

My biggest fear was meeting my abuser in court and not being able to control my bodily functions. I would be so tense that if my stomach lurched hard enough at the sight of him, I would have to run off to vomit or worse. There were several occasions where I incurred the wrath of the judge because I had to run off, at a moment’s notice to the loo to dry retch. I don’t think the judge ever really understood the impact of being in the same room as the man who did what he did. How could he? The man in front of him was charming and softly spoken and said all the right things. How was the judge to know that saying the right thing was easy and meaningless? Putting it into practice, not so much. To the judge, the end of the relationship signalled the end of the abuse. We needed to concentrate on contact. We needed to move forward.

I would try to keep my tears in check by clenching my teeth, aware that it would make me look stern, possibly even angry but I was scared my body would leak so my words would come out distorted in either a barely audible whisper or a robotic monotone. To stop from crying I opened my eyes wide. Thinking of it now, I possibly may have looked a little crazy but I needed to do all I could to not collapse into sobs. Either way, it contrasted greatly with his ability to talk mellifluously, even tell a small joke or two. Yes, judges need training on how people can change their persona and their demeanour. I’m sure some get it but just not enough of them do, sadly.
At some hearings I would sit stock still, not move at all, hardly breathe and just stare ahead determined not to cry even though my eyes were stinging from tears forbidden to fall.

Sometimes I could feel myself shaking from exhaustion. The few days before a hearing would play havoc with my sleep. He sometimes made a joke about me being mentally ill and paranoid and both he and the judge would laugh. I wanted to shout out, why are you falling for this act? I do not have a mental illness. Read the bundle. I wanted to scream that my perceived mental illness was a fiction to explain away the sleep deprivation from being woken up by him 4 or 5 times during the night, lack of sleep, the stress, caring for a baby. All were reasons for my sluggishness and disorientation. But for him it was convenient to say “Look at her, she can’t cope- it’s because she is mentally ill”. It was a distraction that helped to gloss over his abuse, but I stayed silent. I was too worried my stomach would let me down – or worse.

Those were my experiences. Traumatic and deeply distressing and I have heard many others say the same of their experiences. Whatever the reason for finding yourself in the family court, the experience of court is horrific but, even with the misinterpretations, lack of training, some really dubious report writing and certain conclusions that were so way out I suspected the author may have been high, I do not believe the courts are corrupt.

Family courts are not ‘corrupt’ but the Judges NEED training

What I DO believe is that many judges and magistrates are out of touch with what happens, especially where domestic violence is concerned. Their understanding of the dynamics of abuse, perpetrator tactics and victim behaviour does not reflect what happens in real life and that concerns me greatly. I especially believe there is very little understanding of the coercive and controlling behaviour that can reduce a person to a hostage in their own home but without a bruise or fracture to validate their fear. There is an urgent need for training to help identify behaviour that is invisible to the untrained eye so that outcomes reflect the actual situation and not the distorted picture that has been presented. All too often what appears to be a high conflict split has been categorised as ‘toxic’ and whereas this can be the case, often underlying coercive control has not been identified and so the abuser remains able to manipulate and control in the knowledge that it will not be seen as abuse but six of one and half a dozen of the other.

Training-Training-Training

I believe some very poor decisions are being made due to a general lack of understanding. Training should not be confined solely to Judges. Social workers, Cafcass officers, expert witnesses, lawyers as well as court staff need to be aware. There needs to be a shift from looking at isolated incidents to identifying patterns of behaviour and more training across all sectors will help to change the way domestic abuse is investigated by creating better awareness and understanding to identify and evidence abuse that hides in plain sight.

Evidence

Evidence is not always available in the form of an outright confession or CCTV footage and sometimes evidence needs to be gathered in a different way. This could apply to witnesses. Courts are hugely intimidating to most people and often court staff, lawyers and judges forget this. Courts are scary enough for the parties involved in an actual hearing but for witnesses whose only involvement is to provide information, it can be too much and so many are reluctant to go to court thus depriving someone of valuable evidence. By making the process less intimidating for someone to act as a witness, it would be a benefit especially in cases of domestic violence, abuse and child neglect, cruelty where people are reluctant to get involved for fear of getting it wrong or for fear of retribution from the party they have information on.

Court does not make people angry

I also don’t feel the court system is broken. It is in need of a systems upgrade but it is not broken. It is the people coming in to the court who are broken. Court doesn’t make people angry, the come in angry and a high stress environment will only increase the likelihood of volatility. When looking at improving the court process, it is vital that the parties themselves are not excluded. A less traumatic experience can only have long term benefits not just for the parties but also the efficient running of the court.

A Plea for Pre-Hearing Counselling

There is a duty CAFCASS officer in court on family days to help with children. I believe that Litigants in Persons should have someone there for them to help with information and for support. A Pre-Hearing Counselling Session would be a session where a counsellor or similar is on duty to help explain the court process, calculate rough timescales as to length of the matter, what to expect in a hearing, an explanation of what the judge is looking for but more importantly, that person should be a calming influence with good negotiating and people skills and able to engage with people who are emotional and agitated and put them at their ease. They will be able to, at least in part, inform, ease someone’s distress, assuage their fears as well as signpost them on to counsellors or suitable support services they may need. I believe a friendly face in court would allay a great deal of the fear, tension, distress and animosity, especially one who could say. “Look, I understand your anger but for this matter, you have to put it to one side as it won’t help you and it won’t help your child.” then get the parties to see that feelings of anger, hurt and betrayal are natural but using it as a weapon helps no one.

Post – Hearing Counselling

To help parties consolidate and come to terms with what just happened.

Vulnerable People are Easily Exploited

I have lost count of the times I have said to someone who has contacted me, if you want contact, start a dialogue but don’t expect much cooperation if you’ve put their photo on Facebook and are calling for them to be sent to prison for contact denial. In some cases, the hostility started from the word go and has escalated into an entrenched impasse but often, the hostility has come from family or friends and it has dictated the direction of the split and the injured party has been caught up in the conflict. I cannot begin to count the number of times I have heard that someone was hurt, upset and betrayed by the loss of their relationship and they did not know where to turn, who to speak to and they allowed themselves to be convinced by the anger of their friends or family or some action group and are in a situation where everyone feels personally invested. There is a role for family and friends to act as go-betweens but only if they are able to sit on the fence and remain neutral. A huge problem is that people love to feel involved, even interfere and some use the opportunity to wage war.

Many years ago, a male friend told a female friend that if the father of her children did not pay maintenance, she should stop contact. The father had been made redundant and his ex-wife was sympathetic to his plight but I could see the effect her friend’s anger was having on her and at the time I felt his involvement was unhelpful and told him. He responded in two syllables. Often litigants have no idea of the legal process and rely on false information. They are distressed, worried about legal costs, intimidated by the thought of court, suspicious of lawyers and frightened. One thing I have learnt from being with an abuser is that vulnerable people are easily exploited and this is as true of a divorcee coming across a ‘charmer’ as it is of a distraught dad coming across some of the angry and unhelpful ‘advice’ in the form of people who have had bad experiences and lash out at the system. Better signposting for available help in the form of either legal advice or therapy would be hugely beneficial and would help those in distress with no way of knowing where to go to avoid those out to exploit.

Interview your lawyer

For those lucky enough to have legal representation, lawyers can and do offer support and advice and I have known some brilliant lawyers who were able to get a client to maintain focus on a desired outcome and not go over to the Dark Side. I have also known some pretty bad lawyers who have been dismissive, have not taken the trouble to explain things adequately but continued to flummox with legal jargon leaving a client perplexed and excluded at their own hearing. Some are in desperate need of people skills and some hold deeply ingrained beliefs that are contrary to their client’s. It is important to make sure the lawyer you choose is one you can work with. Much the process will be deeply uncomfortable and distressing with sometimes very personal information being discussed so it is important to feel comfortable with the person representing you.

Make sure they ”Get It”

Most lawyers are lovely, though admittedly even the lovely ones don’t’ always understand your experiences and it is important that they do. As an example, the dynamics of domestic violence/coercive control or a deep mistrust of social services are not always understood or acknowledged. I have often heard lawyers dismiss domestic violence as a ‘legal aid matter’ and some hold the view that abuse is only serious if it has been physical. A client needs to make sure their lawyer “gets them” and understands their situation. Don’t be afraid to ask questions of them.

Reactions

Sometimes it gets forgotten that people in a state of high distress are incapable of thinking straight. It’s not that they don’t want to but the hurt, the fear, the anguish sits there and dominates proceedings and they sometimes react unexpectedly. This needs to be remembered. Court staff, lawyers, magistrates, judges need to be aware of this. People in distress don’t always react the way normally expected of them. Abusers can cry, and they do and some actually look as though they mean it. They admit their mistakes and say they have learnt but not all are sincere. Victims don’t always cry. They can come off as more aggressive that the alleged perpetrator. Some have an unfortunate nervous laugh. Often they come across as defensive and brittle. Corner a frightened animal in a cage, they don’t always cower. Adequate training for court staff, magistrates, lawyers, judges, social workers, CAFCASS should be mandatory so that in family cases, both private and public, there will be better insight Having been in hearings where it is obvious the Judge has no idea of who to believe and which direction to take, training would help to make a decision that is appropriate. I will always remember the words of a solicitor who said, of a judge who was fair. “Being fair isn’t always right”.

Self–Defeating Attitude Kills Hope

It is a huge judgement on my part, I know, but some people are just so wrong for the job. I recall a lawyer who, arms folded, towering over my seated position and glowering, hissed at me that if I did not agree to her client’s demands, there would be hearing upon hearing upon hearing until I had no money. She advertised herself as a domestic abuse lawyer and she was representing my abuser. I have to say, I was terrified. Not just by what she said but by her aggressive stance and intimidating body language. There should be no place for bullies in a domestic abuse situation. I have met many people who, at the start of their career, would have had a passion for their work, be it law, statutory services, the volunteer sector but somewhere along the line they have become despondent, disillusioned, bitter, resentful, have given up but not yet left the building. If you are an employer and looking for change, for progress, you need to have people who believe it can happen. Nothing will change if the prevailing view is “What’s the point, nothing will happen, why bother, nobody listens, nothing ever changes” Negative thinking and a self-defeating attitude will 100% guarantee that nothing gets done and, in the case of domestic violence, when you are advising a victim of abuse that there is a way out, there is a chance to start again, you’re not trapped. How will a victim believe that, if they know you don’t? If you no longer believe in what you do, it’s time to get out.

Practical Changes

There are some changes that could be made fairly easily and which would create a less cumbersome system which could potentially go some way towards creating a better experience. One of them is staggered arrival times. I speak for myself and others when they describe the terror of arriving in court with the possibility that they may bump into their ex with a possible entourage. I have been known to hide in bushes because of queues for the security check and I did not want to risk my abuser walking up behind me. I have also known an abuser bring his extended family to wait for him before the court opened. His ex had to force herself to walk past the sneering and name calling. Maybe staggered arrival times aren’t always practical, maybe some courts could put in place separate entrances for applicants and respondents. It seems extravagant to give each a private meeting room and this could be a simple way of reducing the likelihood of an unwanted encounter.

In cases where there is domestic violence where victims of abuse act in person, a coding system could be arranged whereby on arrival, the victim could show a discrete badge or ticket and the security guard could accompany them to a separate waiting room without a huge disruption. Court staff could then inform their arrival to the Usher. It is very common that abusers will chose to sit either right by the Usher, the door to the loo or the water cooler. I have known some that will happily switch between all three, knowing that every time they move position, it creates distress. I have heard many stories of victims transfixed to their seat and unable to go to the loo or the water cooler and have often gone into a hearing parched and bursting for the loo. I feel that often court staff do not get it. An innocent gesture of the perpetrator opening the door for the victim and accidentally brushing their hand is enough to intimidate a victim into silence yet looks harmless to the untrained eye. Keeping applicants and respondents apart would minimise much of the subtle ‘below the radar’ forms of intimidation seen in coercive control.

Maybe creating separate waiting rooms is not feasible so maybe screens could be put up to give at least some semblance of protection from intimidating stares although diehard intimidators will use heavy sighs, coughs and annoying finger clicking to announce their presence, the main purpose of which is to signal “ Yoo hoo, I’m here and I know you can hear me”.

Court staff should be made aware of subtle forms of intimidation so they can report it to the judge. I remember a hearing where the abuser was accompanied by a Mackenzie friend with an exceptionally loud booming voice. Whilst waiting to be called into the hearing, the MKF would stand by the victim and have a conversation, very loudly, in Italian (which I suspect only she and the MKF spoke). The conversation was less than polite about her but how do you prove it? Luckily, he was so loud, the usher asked him to continue out in the stairwell whereupon he stood just outside the ladies lavatory. Classic intimidation but who would have recognised it?
Someone else told me that their abuser would delicately run his index finger down his face, it was a code to her to say he would cut her face. To everyone else it looked like he was brushing off a stray hair. Training and observation. Much better training. That is what is needed.

Feeding the meter

Parking for court hearings is another thorny subject. It never fails to amaze me that conference halls can organise tickets for all day parking yet with hearings, lawyers and their clients often have to dash out to feed a meter which, at an all-day hearing, is not only distracting but adds to the stress levels already at play. I fail to see the difficulty in a system whereby a person due in court can purchase a half day/full day parking permit online when they are listed for a hearing.

Listings

I fail to see the reasoning behind listing a hearing for 10 am and then having to hang around all day waiting to go into court. I understand the bit about not wasting the judge’s time but, in light of legal aid cuts, all this hanging around must be a huge drain on the public purse.

Court Security

I can laugh about it now but I remember the time I arrived at the court with an urgent ex parte application for an occupation order. I arrived and asked the security guard where I could deliver it only for him to shout, “Why are you coming here with an occupation order? We’re not the bloody job centre, you know!”

Finally
In conclusion, some suggestions I would have welcomed as a LiP which would have made the whole process a little less distressing but, if I am completely honest, I would have put up with a hearing in a barn with a mouldy squat loo if it meant the judges, lawyers, court staff et al had received comprehensive training in identifying below the radar non-physical abuse.

Now there’s a thought.

The woeful state of our debate Part 8: Men vs women

This is a post by Sarah Phillimore

As someone who spends a great deal of time complaining (legitimately) at the simply woeful state of our national debate about the family justice system in general and proceedings involving children in particular, I accept that it is incumbent on me to put my money where my mouth is particularly when I appear to have caused annoyance with some sound bite response.

https://twitter.com/FamilyLawD/status/736864181828325376

I invited Jeff Botterill to write a guest post for this site to which I could respond at greater and more nuanced length, but it does not seem that Jeff wishes to take up that opportunity, so I will hopefully start the ball rolling with this.

Jeff asked me to consider some articles, via a series of tweets.

One was from the Telegraph in 2009 which stated that children in a third of family break ups lose contact with their fathers due to ‘failing court system’.  Another from the Telegraph in 2008 which stated that ‘fathers were powerless against vengeful mothers’. And finally an article from the Guardian in 2004  which stated that Munby J (as he then was) launched an ‘extra-ordinary attack’ on the family court system for ‘failing fathers’.

So what is my response to this?

First: these articles range from 2004-2009. Already that puts the debate on the back foot. A lot has happened in the family justice system since 2009 (some of it good, some much less good). I am not really interested in arguing about what things were like 7 or even 12 years ago – I would like to focus on the situation as it is now.

I would like to know what Jeff’s response is to the rather more recent research in 2015 that found that courts did not discriminate against fathers. However, I clearly can’t ignore the fact that these articles struck a chord with Jeff, and presumably would continue to strike a chord today with many others who represent fathers or fathers’ rights groups. So lets look at what they say.

The Telegraph article from 2009 states:

A quarter of the children said that they had been asked to lie to one parent by the other and 15 per cent said they had even been called on to “spy” for their mother or father.
Meanwhile half of parents polled admitted deliberately drawing out the legal process for maximum benefit and more than two thirds conceded that they had used their children as “bargaining tools”.

This article gains a little more ‘oomph’ than I would normally expect from something in the Telegraph because it quotes an actual lawyer who says:

“The adversarial nature of the system invites people to come and use the courts system as a punch up and the children get used as pawns,” said Sandra Davis, head of family law at Mishcon de Reya, for whom the poll was conducted.
“It polarises parents and it puts children in the middle of the antagonism.
“Some fathers back off because it is too painful to carry on litigating, they give up.”

But this is the problem. I simply don’t accept that it is the court system that makes bitter, angry people bitter and angry.  I don’t accept that it is the court system that makes parents use their children as pawns in their horrible battles against one another. I don’t accept it because it is emphatically not what I have witnessed over 17 years.

As Julie Doughty said:

Of course – the court system will certainly NOT help make people less angry or less bitter. Court is absolutely the last place angry bitter people need to be. But it isn’t the court causing this problem. It is simply that the court can’t really do anything about it. That isn’t a question of ‘fault’ – its a recognition of reality.

My very clear view, based on now nearly 17 years working in the family courts in both private and public law proceedings is that the law is a very blunt instrument for dealing with the misery and pain that comes from the toxic unravelling of a relationship; particularly when there are children involved – the ultimate hostages to fortune. It isn’t possible to simply imprison hostile mothers who are the primary carers of young children. What is the likely impact of that on the child? Fines have limited impact if someone has no money. The court has very few weapons in its arsenal to make the unreasonable, reasonable.

I have considered the law about intractable contact disputes in another post. It is clear that the senior courts agree with me – being a parent is a responsibility. Bringing another life into this world is a very serious thing and one that should not be considered lightly or frivolously. Because when it goes wrong, the shock and emotional fall out is considerable for everyone involved. 

What the more extreme fathers’ rights groups such as Fathers 4 Justice seem to want us to accept is that all their members were just so terribly unlucky – to trip over and find themselves accidentally impregnating some awful woman who went on to make their lives a misery and thwart their relationship with their children. Presumably the reality is more likely to be that at some point, these men and these women met, formed a relationship, had consensual sex and decided to bring a child into the world. If they made this decision without really taking the time to get to know each other and to make sure that they at least liked and respected each other enough to co-parent well, then I am afraid it is their fault when things go wrong down the line and they find they lack the tools to communicate with or understand one another.

Maybe that sounds a bit harsh. Maybe love – or lust – is blind. But the one thing they cannot blame for their inability to communicate reasonably or respectfully, is the court system.

I am quite clear that behaving badly in court is not the sole province of either the male or the female. Both can and do behave very badly and their children suffer for it. For every article decrying the system failing fathers, there will be reports from other pressure groups saying it fails mothers by being far too soft on violent men. See for example the 19 Child Homicides Report from Women’s Aid.

So much of this debate is woeful because it is turned into a ‘them’ versus ‘us’ debate; the Evil Feminazis against the Violent Abusive Absent Fathers. Lucy Reed discusses this clearly in her blog post – Talking AT and OVER not TO and WITH – and I endorse all that she says.

What both ends of the polarised extreme can agree on however is that the court is to blame whenever something goes wrong. And I reject that, and will continue to reject it as a clear example of attempt to deflect responsibility to some external agency.

There is real debate here about what we need to do to stop the problem arising in the first place – better sex/relationship education at school? –  and to provide better mechanisms for dispute resolution – more access to counselling/therapy?

But we won’t be having that debate when all happens is two opposing camps shouting at each other across an abyss. I accept that my experience is just that – my experience. Others may have different experiences. But equally, it is not reasonable to expect me simply to abandon my experiences on the back of some news paper articles now many years old.

But if I am wrong, if I have missed some fundamental point, I hope Jeff will reconsider and provide a response to this. What we need to do is think about how to make a bad situation better and encourage dialogue between all those on whom the family justice system has an impact – which is pretty much everyone.

EDIT 30th May

My fault for not being sufficiently clear. I am of course talking about disputes between parents where there have been no findings made against either of them. I am emphatically NOT talking about cases where there is clear, proven reasons for one parent to be very wary of the other – for example because of violence or false allegations made by one against the other. 

I don’t think the courts are as bad as some claim at recognising the seriousness of domestic violence but I understand and appreciate that many disagree with me. For what it’s worth, my comment on the problem is that this prevailing culture of telling victims ‘we believe you’ is all well and good but it leads to some nasty shocks when actually in a court room setting where a Judge is not saying ‘I believe you’ but rather ‘show me the evidence’. And I accept it is often very difficult to ‘prove’ in a family court historical allegations for which there is no supporting evidence, such as police or doctors’ reports. People in relationships with violent and abusive people need help and support to get out as quickly as possible and to make sure their concerns about the other’s behaviour are reported to other agencies and well documented. 

The woeful state of our debate about the family courts Part VII: Barbara Hewson

This is a post by Sarah Phillimore

The fact that this is number seven in a series of posts about the dangerous debasement of public discussion about the family justice system and issues of child protection, should be a clue that I think we are in a very parlous state indeed.

What makes this particular post different from the other six however is the response of the author whose views I criticised – Barbara Hewson. That response – in the space of about 12 hours – was to make a complaint to my Chambers, threaten to complain about me to the Bar Standards Board and send me numerous aggressive tweets in the small hours of Friday morning.

EDIT 30th May  – apparently Ms Hewson is now contemplating action for defamation and has requested that anyone who retweeted this post ‘unretweet it’. Given that my explicit assertion – she talks dangerous nonsense – is true in my honest opinion, it will not be merely my duty but my pleasure to defend this post in open court.

This is worrying on a number of levels, not simply because Ms Hewson feels it is appropriate to deal with dissent in such an aggressive way, all the while proclaiming her status as ‘victim’ in the face of my vicious harassment i.e. my refusal to accept everything she said as true. The delicious irony of that will not be lost on anyone familiar with Ms Hewson’s work in debunking false allegations of sexual abuse and pouring scorn on those who would play the ‘victim card’.

But it is more worrying than simply being annoying for me, because it confirms and underscores what I have long suspected – those with the loudest voices in the ‘debate’ about the Evil Secret Corrupt Family Court have no real interest in promoting reform and change. They gain their validation and some excitement from being those who ‘expose’ the corruption and who ‘speak truth to power’. To sit down and calmly discuss what we could actually do to make the system work better is of no interest to them at all – because its not remotely sexy or exciting, just extremely necessary.

The family courts make a mockery of justice?

Anyway. Assuming my website isn’t suddenly taken down after further complaints from Ms Hewson, here is my discussion of her recent post ‘the family courts make a mockery of justice’  which appeared in Spiked On-line on May 25th 2016.

We are off to a blistering start in the first paragraph:

The UK Department for Education last week published research into rates of reporting child abuse. Feminists claimed that the fact that a third of those interviewed said they would not report suspicions of abuse amounted to ‘victim-blaming’.

The Department of Education does NOT cover the ‘UK’ and Ms Hewson is unable to identify the myraid ‘feminists’ who spoke of victim blaming but it seems that she is actually referring to Isabelle Trowler – who may well be a feminist (I have no idea and can’t see the relevance either way) but who is more usefully identified as the Chief Social Worker for England.

Maybe it gets better. Let’s read on.

A ruling from the Court of Appeal on 19 May in a family case shows just how skewed the system has become when dealing with accusations of abuse. The case is called Re E (a child) and it makes depressing reading.

First lets be clear. She is absolutely right that E (A Child) [2016] EWCA Civ 473 makes for extremely depressing reading. There is no doubt that the case was extremely poorly managed and crucial principles ignored or misunderstood. The police interviews of the children were badly handled and the court did not give sufficient thought to whether or not the children should be cross examined. The allegations of abuse they had made and which were found proved at first instance were overturned by the Court of Appeal.

The reasons for the appeal succeeding were summarised at para 98 of the judgment:

  • The judgment wholly fails to acknowledge and then analyse the numerous and substantial deviations from good or acceptable practice which are evident at every stage of the police interaction with the three complainant children, both during the ABE interviews and by undertaking the ‘fast-track’ interviews thereafter.
  • The application for the police officer to be called to give oral evidence should not have been refused (unless, on investigation, it was impossible to call the officer at any stage and on any basis during the hearing).
  • The judge’s analysis of the children’s evidence is open to the valid criticisms made in support of the appeal. In particular the judge’s approach to, and use of, the inconsistencies within the evidence of the three children fell well short of what was required.
  • The judicial analysis of the formal and properly presented Re W application made by the appellant was so wholly inadequate and, in effect, simply was not undertaken. This, of itself, is an error of sufficient materiality to justify setting the fact finding decision aside.
  • A’s right under ECHR, Article 6 to a fair trial and his right to the protection of legal professional privilege were breached to a substantial degree.
  • The judge’s analysis of the evidence of what A had said, together with his presentation, when being invited to address sexual matters was both confused and inadequate. There is a real risk that every aspect of what is recorded by the social worker, guardian and key worker in October, November and December 2015 relates entirely to his complaint of abuse by two uncles five years earlier. The potential for that to be the case was not taken into account by the judge and, in any event, the judge wrongly conflated evidence about that past abuse with the entirely separate recent allegations at a number of stages in her judgment.

So no doubt that case was FUBAR. I have written myself about other instances of similar woeful failings. It’s not – sadly – a unique case.

But is Ms Hewson right to extrapolate from that and conclude that because one case was royally screwed, the entire system must therefore be rotten and that family courts routinely pay no regard to the law? She says 

This approach ignored a Supreme Court ruling from 2010, Re W, where the Supreme Court said that the question of whether a child should give evidence should be approached on a case-by-case basis. A blanket prohibition on children giving evidence was incompatible with the right to a fair trial. Baroness Hale stressed that focused questions, which put forward a different explanation for certain events, ‘may help the court to do justice between the parties’. That ruling went unheeded by the family courts.

This is remarkable, suggesting that the family courts operate a separate system of legal rules unaffected by fundamental legal principles, such as the right to a fair trial and the supremacy of judgements of the Supreme Court (the doctrine of legal precedent). It is perhaps not surprising that many ordinary people view the family courts as inherently unfair.

It was gently suggested to Ms Hewson on Twitter by those of us who do have experience in the family courts and are able to point to examples of good practice, that it is just not true to say that the entire family court system simply turns it back on the Supreme Court and ignores legal principles wholesale.

Ms Hewson’s response was to rely upon her 12 years of experience (which later expanded to 31 years) as all the evidence she needed that the system was rotten to the core and the fault was the ‘corruption and collusion’ of family lawyers.

This is clearly nonsense. As Napoleon said – never attribute to malice what can be explained by incompetence. That some cases go wrong does not mean one is entitled to conclude that the entire system is rotten and all the lawyers in it just collusive stooges.

And this nonsense matters, not merely because it is a barrister saying it. This nonsense takes root, infects people’s ability to understand and engage with the court process and provides a vicious cycle of withdrawal, lack of trust and disastrous consequences for the proper management of family cases.

This whole episode has been sad for me. I did at one time admire Ms Hewson, I thought her often brave and funny. She has said things that needed to be said. She is right to be wholly critical of what went wrong in the case of E (A Child). But her reaction to even the gentlest of criticism has demonstrated again and horribly clearly just how debased our current discussion about the family justice system really is.

And if she wants to keep on tweeting me in the early hours of the morning, she needs to realise that I also know how to take a screen shot.

Adoption – A vision for Change? The Response from Nagalro

The Response from Nagalro in response to the policy paper Adoption: A vision for change (Department of Education, March 2016)

11 May 2016

This is an open response from Nagalro, produced here with permission, thanks and total agreement – Sarah Phillimore.

We are concerned that despite the intention to ‘strengthen families’, no more is said on this point and that there is no discussion of support for disadvantaged families despite the worrying increase in the numbers of children subject to care proceedings.

Introduction

1. Nagalro is the professional association for children’s guardians, family court advisors and independent social workers. All our full members are registered as social workers currently working with children and families.

2. We have a significant number of members who have worked directly in the field of adoption, both as social workers and managers, some of whom have been involved continuously with this work for over thirty years and a few for over forty years. These practitioners have extensive experience of preparing and assessing prospective adoptive parents, of life story work and preparing children for placement, in placing and supporting adopted children and their adoptive parents, and in providing counselling to adopted adults seeking information about their history and origin. Thus, collectively, we can draw on a wide experience of adoption work and have a broad perspective on how adoption has developed as a beneficial service to children over the years.

3. We are fully aware from our experience that adoption has offered, and continues to offer, some children a most valuable solution when ‘nothing else will do’ – that is, where there is no viable alternative family placement available to meet their needs. We note the Policy Paper does not address how to prevent children entering the care and adoption systems in the first place.

4. Whilst formal responses have not been sought by the DoE, we consider this Policy Paper is so important and signals such a radical change in the adoption process, not least because it states ‘we are determined to redesign the whole adoption system’, that it is incumbent upon us to comment both to offer encouragement and caution.

5. We are of the view that, like the curate’s egg, the proposals are good and bad in parts. We are concerned that despite the intention to ‘strengthen families’, no more is said on this point and that there is no discussion of support for disadvantaged families despite the worrying increase in the numbers of children subject to care proceedings. The scale of reduced spending on early intervention in children’s services and the way this leads to greater costs elsewhere is well analysed in ‘Cuts that Cost’ (2015) produced jointly by the National Children’s Bureau and Children’s Society. Another excellent analysis of how funds could be better used is ’Spending on Late Intervention – How we can do better for less’ (2015) produced by the Early Intervention Foundation. The key point made by both of these publications is that by significantly reducing early preventive work, more public money has to be spent on costly proceedings, foster care, mental health provision, adoption agencies and so forth, which potentially could be avoided by better focused spending at an earlier stage.
6. We welcome the practical proposals once a Court decision has been made that a placement order and adoption is in the best interests of a child. The proposed structural and management changes, supported by increased funding to streamline the process of speedy placement and effective post placement support, are helpful and we are committed to working with the new agencies to maximise the benefits for children with an adoption plan. We are, however, concerned by the underlying tone of the document

7. We are concerned that special guardianship and family placements appear to be viewed as in some way inferior to adoption as a permanency option. We have some suggestions with regard to how the proposed improvements in the adoption process could be expanded to incorporate making the best permanency assessment for children to achieve the best outcome if they cannot be cared for by their parents.

8. We set out below our concerns with regard to the apparent prioritising of adoption as a solution for children for whom the threshold test of the CA 1989 has been passed and who cannot return home and also our suggestions regarding the future of the adoption service under the proposed new regional arrangements.

The role of research and use of statistics

9. There has been very little useful research in the field of adoption over the years – perhaps due to the long term factors involved, the parameters to be measured and, when comparing with other ’permanence’ options, the problem of comparing like with like. It is acknowledged, as noted in the recent research by Selwyn et al at Bristol University, that the consensus of the limited research done to date suggests that compared with less permanent options (such as residential care, fostering and residence) adoption breakdown rates are lower (3-8%), and also that they are proportionally higher the greater the age of the child at placement. If adoption, as suggested in Policy Paper, is to become a ‘preferred option’ in child care planning it is imperative that both longitudinal research on outcomes and comparative research with other options, such as permanence through special guardianship is commissioned to ensure fair comparisons are made.

10. Recent research that has been done, including that referred to above, has looked at stability of placement during minority. We believe that research should go much further and address the experience of adults at various stages in the life cycle using the factors identified in the 1990s by Professor June Thoburn at the University of East Anglia, namely the ‘twin pillars’ of a sense of stability, legal security and permanence as well as, importantly, a sense of identity in order to provide a balanced picture. We know little of how adopted people, who have maintained stable relationships with their adopters, have felt about the experience and the impact upon their mental health. We have anecdotal evidence, but no research, that many feel ‘different’ and this has had a varying impact on success and fulfilment in adult life. The research on contact and open adoption is also very limited and on such a small a scale as to lack cogency.

11. Longitudinal studies, however useful, will also present risks of misinterpretation due to demographic changes over time as the population of children and prospective adopters in the 1950s and 1960s is very different from now. Then a relatively healthy group of unmarried mothers from a wide range of social backgrounds, gave up their babies due to societal pressure to a relatively young group of adopters for whom there were few fertility treatments available. The experience of this group, some of whom are the current policy and decision makers, cannot be directly extrapolated without allowing for a changing context.

12. The current situation is very different for three principal reasons: Firstly, many of the children now available for adoption come from backgrounds where the ’toxic trio’ of mental health (including learning difficulties), substance abuse and domestic violence are present. We are only just beginning to recognise the ‘iceberg’ of foetal alcohol syndrome and its effects, evident only with hindsight and from the accounts of adopters of young adults, many of whom feel they were not advised at the time of placement regarding all the issues in their child’s background and who have struggled with inadequate support over many years. Adoption is certainly not an endeavour for the faint hearted!

13. Secondly, there is reduced availability of suitable prospective adopters due to other options now more widely available, such as surrogacy and egg/sperm donation to assist people unable to have children naturally. Further, many of the current population of prospective adopters are older and some have suffered the severe emotional stress of a number of cycles of IVF and complex fertility treatment.

14. Thirdly, there continues to be a mismatch between the children needing homes (older children and sibling groups), compared with the aspirations of most adopters for younger children. The speeding up or even streamlining of the adoption process is unlikely to redress this imbalance. Aspirations need to be realistic otherwise all involved with the adoption/permanency process risk carrying an unreasonable sense of failure. These are all factors, which in our view, require much closer examination. The recent research of Selwyn et al notes the significant levels of stress and depression experienced by adopters and, by inference, the importance of resilience in coping with a much more damaged cohort of children, all of which also requires closer examination.

15. There is also the issue of fairly comparing like with like. The Policy Paper curiously, does not mention the outcome noted by Selwyn et al for special guardianship although it does for residence orders. However, the two are not comparable as unlike special guardianship, residence is not a permanence option.

16. At the time of Selwyn’s research it was found that more special guardianship than adoption placements broke down in the early stages. It should be noted that this was in the context of pressure from the court process to assess relatives within 26 weeks and the reluctance of both courts and local authorities to ‘test out’ special guardianship placements in comparison with adoption, whereas the interval for adopters from initial application to placement is usually much longer.

17. Further, adopters are usually assessed and prepared by dedicated teams of adoption specialists with a high level of skill and expertise compared to the far less coherent process experienced by most prospective special guardians whose assessments are generally squeezed into other functions such as fostering or left to a social worker to do as a low priority amid other pressures or by a range of independent social workers, all of which results in a process of very inconsistent quality. Adoption and special guardianship cannot be compared regarding outcome until there is a level playing field. There appears, as a result of the poorer service received by special guardians, to be a suspicion by policy makers of special guardianship as an effective placement outcome leading, presumably, to the current emphasis on adoption.

The role of adoption in children’s permanency decision making

18. Unlike an earlier Government document ‘Adoption: The Future’ (November 1993) there is no recognition in the Policy Paper of the draconian nature of adoption against the wishes of parents, or that adoption severs the legal relation between a child and their birth parents and family. This was acknowledged in the 1993 document in the following terms: ‘In domestic adoptions the balance between the rights and interests of the child, his adoptive parents and his birth parents will be defined afresh. In particular there will be …. recognition that the permanent legal severance of the relationship between child and birth parents should be justified by clear and significant advantage to the child compared with less permanent options’

19. The basis of the careful crafting of CA 1989 was to provide support for parents to care adequately for their children and for the state to intervene by an application for a care order, where the threshold for making such an order must be proved. If amendments are to be made to CA 1989, it could be possible for parents seeking a s.20 placement may to find themselves in a position whereby a local authority could make a ‘foster to adopt’ placement and the carers/potential adopters may gain legal rights never initially intended. Furthermore it could, in effect, be the regressive step of a return to s.2 CA 1948 when local authorities by a committee decision could assume parental rights and responsibilities for a child without any due process of law.

20. Whilst most European states have a process for permitting adoption without parental consent, in her study of adoption law and practice in England and Wales for the European Parliament (2015), Dr Fenton-Glynn comments: ‘it must be acknowledged that few – if any – States exercise this power to the extent to which the English courts do’ (page 27). In her recommendations to the UK Government, Dr Fenton-Glynn states: ‘The complete severance of all legal and social ties between a child and their birth family should only be considered in the most severe and exceptional circumstances, which are not necessarily present in all cases where a child cannot return to their birth family’ (page 46). This recommendation appears not to have been heeded in this DoE Policy Paper.

21. When our closest neighbours are so reluctant to take such a draconian step with their own children, surely we should exercise caution in our use of what some would call ‘forced adoption’. It was, after all, not so long ago that the UK was transporting children to Canada and Australia, a piece of social policy that is now perceived as quite morally wrong and misguided despite its justification at the time as being in the best interests of children and enjoying the support and management by such respected voluntary agencies as Barnardos.

22. We are concerned that any envisaged changes to the CA 1989 may be the thin end of the wedge and depart from the principles enshrined in the Act that if a child cannot live with a parent then consideration of a family placement must be made and that adoption should only be the choice when ’nothing else will do’, a situation which reflects European jurisprudence.

23. Prior to Re B and Re B-S, it was the experience of some of our members that some local authorities took a somewhat cavalier approach to assessing family members who, having no legal status in care proceedings or basis to participate unless viewed favourably by the Guardian, had difficulty in challenging care plans. There was a tendency for local authorities to choose adoption as both a simpler and also expedient option to a kinship placement, with all the attendant complications of assessing and supporting family members. It is conceivable that the drop in adoption figures after these two judgments, far from presenting a cause for concern as suggested in this Policy Paper, in fact showed that more appropriate and legally correct decisions were being made by local authorities upon being reminded by these judgments of their proper duty to assess family members adequately.

24. There are many children in England and Wales who would have better life chances if removed from both parents and family members and placed with people assessed as suitable to adopt. However, this would be social engineering and the danger of this has been noted in various judgments, even prior to the CA 1989. For example, Lord Templeman put it this way in Re KD (1988): ‘The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child’s moral and physical health are not endangered. Public authorities cannot improve on nature”. This is a normative statement, such that whilst Local Authorities could improve on nature, they have no right to do so other than in very exceptional circumstances.

25. It can be argued that the same point applies equally to family members, particularly where the child has a close, pre-existing relationship and a secure attachment. This point has been made by inference in many subsequent cases as Wall LJ in Re L (2006) pointed out: ‘’There are many statements in the law reports warning of the dangers of social engineering”. He cites Butler- Sloss LJ in Re O (1992): “If it were a choice of balancing the known deficits of every parent with some added problems that this father has, against perfect adopters, in a very large number of cases, children would immediately move out of the family circle and towards adopters. That would be social engineering”. It is noteworthy that she mentions the ‘family circle’, which seems to imply that caution must be exercised not only in choosing adopters over parents, but also over family members.

26. Hedley J reiterated the point in Re l (2007), where he specifically states: “Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent”. He notes that “very unequal consequences”’ will flow from children’s differing experiences and states explicitly “it is not the provenance of the State to spare children all the consequences of defective parenting”. He goes on to say that to justify removal “there must be something unusual; at least something more than commonplace human failure or inadequacy”. The original CA 1989 Guidance and Regulations is helpful in stating that such harm as to reach the threshold should be “considerable, noteworthy or important” (Vol 1, 3.19). It is not sufficient that a child would be better off in another family. This is the very reason for the threshold and in our view the same high test should be applied when considering placement with family members, particularly where there is a pre-existing positive relationship.

27. We would wish to caution that by unreasonably raising the yardstick for kinship carers versus adopters, the risks outlined in these cases may arise. We agree that the additional criteria added to the special guardian assessment schedule are appropriate and concur with the comments made by John Simmonds of CoramBAAF in his article in Community Care entitled ’Special guardianship reforms do not address time pressures facing Social Workers’ (24.02.16). We believe that to achieve balanced, comprehensive and accurate assessments of prospective kinship carers they must be afforded the same quality of assessment as prospective adopters.

28. We believe the proposal to establish regional adoption agencies (RAAs) as set out in this Policy Paper, offer an opportunity to bring together all the expertise needed to make the best permanence assessments and that decisions for children and should include not only adopters but potential kinship carers. Thus, rather than calling these new agencies regional adoption agencies a better title to reflect the functions that should properly be included would be ‘Regional Permanence Teams/Agencies’. This is a proposal also suggested by TACT.

29. Any assessment relating to permanency decisions for children should take into account, and give proportionate and appropriate weight to the child’s existing secure attachments. Inevitably there are some children subject to placement orders in foster care awaiting a suitable adoption match who, during the time waiting, establish such a secure attachment to their foster carers that removal to unrelated adopters is clearly not in their interests. It is our experience that foster carers wishing to adopt in such cases rarely receive support from their local authorities in the first instance. This seems to stem from financial reasons because foster carers typically are unable to afford to adopt unless they continue to receive financial help. Local Authorities (LAs) are also reluctant to lose foster carers who provide a skilled, expensively trained, resource and this results in either the child continuing to live with a sense of impermanence and fear of removal as a ‘looked after child’ or, in some cases, a stressful, not infrequently bitter, stand-off results between carers and their local authority (in one case a judge threatened to give judgment in open court with media present to shame a local authority to provide financial support). None of these experiences are conducive to the welfare of a child and we hope that the new RAAs will have the means, either directly or via their constituent local authorities, to enable a smoother transition from foster placement to adoption for this significant minority of children. Children adopted by foster carers sometimes also have the additional benefit of established contact arrangements with their birth family with which their carers feel comfortable, unlike most unrelated adopters. This provides the duel benefit of legal security and identity as described by June Thoburn.

30. We were surprised to read in the research quoted, albeit limited, that the stability rates for foster carer adoptions were no better despite the advantages of having no disruption in placement and contact. We postulate that in such cases an undermining factor has been the usually protracted and contentious nature of the adoption process as described here, which has been a barrier to children achieving a sense of permanence as soon as possible. We welcome any support, which the RAAs can offer in streamlining and speeding this process for this group of children.

The role of the Regional Adoption Agency

31. Nagalro broadly welcomes any restructuring of the adoption process which enables economies of scale in developing the range of skills and services needed in the assessment, approval and support of prospective permanent carers, and also the assessment, preparation and support of children in need of permanency. We believe that as stated in the Policy Paper, this provides an exciting potential for the wider use of innovative and child centred strategies such as life appreciation days. We acknowledge that much innovative work has come from the voluntary adoption agencies, but not exclusively and are concerned that the tone of the Policy Paper, with little evidence, suggests that the private and voluntary approach as opposed to the public and ‘bureaucratic’ is always best. We are concerned about this and would caution against a cavalier approach to decision making, riding rough shod over the regulations, in the drive to remove bureaucratic constraints. We would also caution against removing a corporate approach, such as the use of panels, from the decision making process as this would lose the very wide range of expertise and knowledge which is brought to bear when life changing decisions are being made for children.

32. We would appreciate much greater clarification as to what is envisaged regarding the relationship between RAAs and the LAs holding parental responsibility for children. It is unclear whether parental responsibility will be devolved to the RAAs or whether it will remain with the individual local authority. If it remains with the LA, any decision on ‘matching’ a child to adopters will remain only a ‘recommendation’ for the LA’s decision maker. Much greater clarification of the legal and governance relationship between RAAs and the LA with responsibility for the child and the LA where the placement is to be made, is needed.

33. We acknowledge that some small LAs have had particular difficulties in providing the whole range of services from their own resources, although some, such as in London and elsewhere, have already recognised their limitations and set up consortia arrangements prior to the RAAs initiative.

34. We wonder how performance indicators will be set for the new LAAs as it seems that any increase in adoption figures is perceived as ‘a good thing’ and any reduction ‘a bad thing’, which may not reflect whether the right permanence decision has been made for each child and put into effect in a timely way. Dr Fenton-Glynne in a further article in Family Law (February 2016) warns how the imposition of “adoption score cards” and similar data can result in a distortion of professional activity to “meet the target” rather than effect the best outcome for each child. We strongly warn against an approach where an increase in special guardianship orders and decrease in adoption orders will negatively impact upon the evaluation of the performance of RAAs and LAs.

35. We strongly encourage proposals in the paper regarding increasing the amount and quality of adoption support, but urge that this support should be extended to include special guardianship. Social workers in this field have long been aware of the vulnerability of adopted teenagers who have been disproportionately represented in Child Guidance/CAMHS clinics for many years and welcome targeted support for this group of adopters and children. Dr Selwyn notes this in her research and makes recommendations for a wide range of support that needs to be made available.

36. We are concerned that sufficient funding will be available and note that the Adoption Support Fund was given an initial budget of £19 million pounds, £16 million of which was spent in the first 6 months. This suggests that at least £32 million will be necessary in the first year, and this is without taking into account any increase in numbers that this Policy Paper encourages and anticipates. It would be unfortunate if demand outstrips supply and many adopters, having been rushed into adoption, are left feeling let down.

37. We welcome proposals to develop the work force such that RAAs should become a ‘centre of excellence’ and repository of skills in preparing children for placement and assessment of all prospective permanent carers, both related and unrelated. These skills should be available for assessment at both the pre-proceedings stage and during proceedings, not exclusively post proceedings. Without this, there is the significant danger of adopters receiving a superior service to prospective kinship carers and special guardians thus replicating, in our view, the current unsatisfactory situation. The establishment of Regional Permanency Agencies offers a real opportunity to establish a fair system and level playing field for all prospective permanent carers and we hope the opportunity will be grasped.

38. We also welcome the potential that exists for the new regional agencies in concert to become what might be described as a ‘research hub’, where a variety of data can be systematically collected which could include longitudinal and comparative studies of various forms of permanency placement. More information is needed too about the impact of ‘open adoption’ and other arrangements where contact continues with birth parents.

Amendments to legislation

39. Page 23 of the Policy Paper sets out the intended amendments to the CA 1989 whereby when considering the appropriate final order/care plan, the court will have to consider whether the different proposed placements will be sufficient to meet the child’s needs, including any increased needs which they may have arising from any previous mistreatment, and whether this level of care will continue until the child is aged 18 years. This provision appears to be an attempt to restrict family placements and the making of special guardianship orders when, in our view, the proper test for a child with a pre-existing relationship should be the ‘threshold’ test with all the attendant caveats against ‘social engineering’ as outlined above so clearly by a series of judgments from eminent judges and confirmed by Re B-S. In our submission the relatively poorer outcomes in respect of the stability of special guardianship placements arises for the most part from the haste which was imposed by the 26 week limit and the inconsistent quality and process of assessment by LAs of prospective special guardians compared with the more rigorous and consistent assessment process used for prospective adopters. We accept, as proposed by John Simmonds, that the process for assessment of kinship carers should be more rigorous and are of the view that the amendments to the Special Guardian Regulations (29.02.16) sufficiently address that need.

Conclusions and recommendations

40. We welcome the establishment of regional agencies as centres of excellence and repositories of skills to address the need to improve the speed and effectiveness of placing children with their best permanence option but believe that, most importantly, their remit should include assessment of potential kinship carers and special guardians.

41. We suggest that such agencies be called Regional Permanence Agencies rather than Regional Adoption Agencies.

42. We suggest that the skills and resources of these agencies are available at all stages from pre-proceedings to placement in order to provide a level playing field and best evidence for the family court.

43. We recommend that social workers in these new agencies should have responsibility for assessing both prospective adopters and kinship carers as this will enable them to develop a broad range of experience and depth of understanding of the strengths and limitations presented by both categories of permanent care. Such will, it is hoped, enable practitioners to develop a balanced child-centred, professional understanding independent of any particular external influence or prevailing philosophy.

44. We strongly warn against an ‘evangelical approach’ to adoption, whereby it is perceived as a good in itself. This perception is contrary to the majority view of European and western thought and jurisprudence, and it fails to appreciate it represents a serious and draconian step and a measure to be considered only ‘when nothing else will do’.

45. We strongly advise against performance indicators that positively promote an increase in adoptions as these inevitably lead to a distortion of professional activity in favour of adoption at the expense of other choices, particularly permanent family placements.

46. We consider that current legislation in statute and regulations, bearing in mind the recent strengthening of the special Guardianship rules and taking into account Article 8 ECHR, is adequate to ensure a proper and proportionate assessment of a child’s permanence needs when return to parents has been ruled out by a court. We warn that any further tinkering with CA 1989 would be unwise and the thin end of the wedge of social engineering.

47. We welcome the role of the new regional agencies, as a source of expertise and repositories of skills, to advise, guide and support related professionals, such as teachers, in their support of children who are in permanent care. We believe the agencies potentially have an important role to play as ‘research hubs’ and repositories of data to enable much better, relevant and useful research in the highly complex field of adoption and permanent placement.

Ann Haigh, Chair and Margaret Payne, Policy Officer
Nagalro
PO Box 264
Esher
Surrey
KT10 0WA

Tel: 01372 818504
Fax: 01372 818505
www.nagalro.com
[email protected]
Principal Administrator: Karen Harris

Calm Down Dear: Why I worry about John Hemming – and why you should too

For now too many years I have been ploughing what seemed like a very lonely furrow, trying to make people understand just what a dangerous and unhealthy influence John Hemming has had – and continues to have – on the nature of public debate and understanding about the child protection system. And consequently the damage he has done to a great many vulnerable people.

The weekend of May 15th 2016 however saw a welcome change. John Hemming managed to be so consistently and persistently wrong about something quite important that a large number of lawyers noticed and commented. John Hemming asserted that lawyers were on ‘effective retainers’ if they had ever acted for local authorities and that their Code of Conduct prevented this as a conflict of interest. It was explained at great length why this wasn’t so; see this post from Nearly Legal. For an entertaining summary of the weekend see this post from Hoaxtead Research.

Pink Tape blogger Lucy Reed also took the time to carefully explain why it did NOT mean a barrister was corrupt or ineffective if they from time to time accepted instructions from a local authority – on the contrary, this allowed the barrister to be more effective at making and running a case.

But as ever, Hemming wasn’t about to let some inconvenient facts get in the way of further promotion of his central agenda; that the family justice system is evil and those who work in it are corrupt. Despite contacting the Bar Standards Board and being told his interpretation of the rules was incorrect, he would not be daunted and was last spotted threatening to campaign for a change in the Bar’s Code of Conduct.

The consequences of any change to the rules which means barristers could not act for parents if they had ever acted for any local authority (or presumably they could not ever defend any criminal if they had once prosecuted another) would mean we would run out of available barristers very quickly. Maybe that is what he wants?

So why worry? A finger in every corrupt pie and consequent exploitation of the vulnerable

What was interesting however was the response from some. It was pointed out that it is ‘futile’ to engage with such as Hemming and that by pointing out this futility I was somehow encouraging him.

I wonder whether some more senior members of the legal profession just don’t understand:

  • the full nature and extent of his activities and
  • just what a game changer the internet has been to allow him to promote his agenda that family lawyers are inherently corrupt.

Whereas only 20 years ago conspiracy theorists were restricted to their lonely bedsits now they have access to professional tools that enable them to produce slick websites that can be seen all over the world. Anyone tempted to smile indulgently at the japery of John Hemming or think me a little odd and obsessive to keep on banging on about it, needs to understand that in every single nasty campaign against the family courts for at least the last 10 years, Hemming has been involved – either directly or by providing support to those who were.

I remain utterly baffled that his activities in supporting those such as Sabine McNeil and Ian Josephs appear to garner very little attention or censure. If you don’t know about the Hampstead Satanic Abuse Hoax, then I suggest you read this and consider the impact not only on the children in the case but the wider community, who have found themselves subject to many months of harassment and accusations from the world wide community of conspirators, alleging that they ate babies or wore their skin as shoes.

When MEPs came to London in November 2015 on a ‘fact finding’ mission to determine if the UK’s family justice system was really as abusive and corrupt as was claimed in a number of petitions (organised by Sabine McNeill) they spoke to some responsible people, such as the Co Chair of the Association of Lawyers for Children and the Family Rights Group. BUT they also took time to discuss issues with John Hemming and his lackey Julie Haines, one of the named ‘McKenzie Friends’ on his Justice For Families website – and what they charge or what he pays them, he won’t be clear about.

Ms Haines has told me that she brings hopeless appeals to the Court of Appeal in the full knowledge that they are hopeless but as a mechanism to show the higher courts just how unhappy people are with the system. Which is all very well and good, but as a campaigning tool to spread awareness it is not merely hugely expensive and a drain on the public purse, it is diverting the attention of our judiciary away from cases where appeals might actually have some merit, and must be at enormous emotional cost to a parent who is presumably unaware that their case is simply being used as an example of a corrupt system. Presumably that parent had some hopes when JFF took on their case; hopes which will soon be dashed.

John Hemming has directly contributed to and supports the continued debasement of our public discussion about matters of huge important to us all – how do we protect children? How do we support families? Certainly since the death of Peter Connelley we have been pushed into ever more extreme positions; from Hemming’s promotion of parents’ rights to the exclusion of any consideration of the child at one extreme, to the Government’s continued push for more adoptions more quickly at the other.

To an extent I suppose we have got what we deserved. As a society we seem uncomfortable with nuance in our debate, are unwilling to accept responsibility and to learn from mistakes, preferring instead the culture of ‘blame and shame’  – for every child beaten to death by his parents, we want another social worker’s head on a plate.

But this really, really matters. John Hemming is encouraging parents to distrust and fear lawyers and thus encouraging them to deprive themselves of our help when they really need it. And his reach isn’t just to the vulnerable and desperate parents – it’s extending now to children.

 

I will leave you with the conclusion of Nearly Legal. I agree. And I think you should too. I am really worried about John Hemming.

Why is this important? Why pay attention to the ramblings of a former MP whose credibility has been demolished by the Courts? Because a lot of desperate and unhappy people do pay attention to him. His advice, including recommending to parents fleeing abroad to frustrate care proceedings, has been acted upon by people. If Mr Hemming now suggests trying to challenge lawyers on the erroneous basis of conflict of interest, or worse, that people should consider a prospective lawyer to be tainted with conflict of interest if they have ever acted for the other side, he is damaging people’s interests, stupidly and unnecessarily.

 

EDIT December 2018

Hoaxstead Research are covering the trial of Sabine McNeil for the breach of her restraining order which attempted to stop her continued harassment of the parents in the Hampstead case. Read here Sabine’s own account of the support and encouragement given to her by Hemming in her battle against the secret family courts.

Adoption: A vision for change?

 

This is a post by Sarah Phillimore

On 27th March 2016 – Easter Sunday – the Department of Education released its policy paper setting out its vision for improving adoption rates. Broadly, it sets out progress re adoption since 2010, current challenges and how they will be met and the government’s vision for the adoption system by 2020.

There are five chapters:

  • Chapter 1 Progress to date
  • Chapter 2 New and enduring challenges
  • Chapter 3 Creating the foundations for sustainable success
  • Chapter 4 Excellent practice everywhere
  • Chapter 5 Sharpening accountability to ensure delivery

In order to ‘achieve our vision’ the government will:

  • Act to address unexpected falls in adoption decisions
  • Deliver radical, whole system redesign by regionalising adoption services
  • Invest in developing the workforce
  • Reduce the time children wait to be adopted
  • Provide more high quality adoption support
  • Further embed strong performance management and accountability arrangements

No one could sensibly argue against much of what is said in this policy paper. Every child does indeed deserve a loving, stable family and for those children who cannot live with their birth parents it is vital to find them permanent new homes as quickly as possible. Adoption is clearly an important option  for those children who cannot live with their birth family, providing stability and care which can last long beyond childhood. It is good to hear that the Adoption Support Fund will be increased.

 

The Government is on a collision course with the law.

But my fear is that this is simply another piece of the adoption agenda which has been promoted by this government for some time now. This is dangerous. Promotion of an agenda is often at the expense of facts. This has clear potential for putting the government on a collision course with the law. This will be a time consuming, expensive distraction and the children will have to watch and wait on the sidelines as it plays out.

Agenda versus facts

The fact that the proportion of children adopted within 12 months has ‘almost doubled’ is offered up as ‘remarkable progress that should be celebrated’.  The recent decline in adoption numbers means ‘there is an urgent need to accelerate our reform of the adoption system now’. Thus, from the very outset, the policy paper is built on the assumption that more adoption and quicker adoption is an unqualified good which needs to be urgently achieved.

The foreword states that only 3.2% of children return to care ever year after an Adoption Order is granted, compared to 25% of children on a ‘residence order’.  This is from research by Selwyn and Masson in 2014. Thus adoption is offers the best chance for stability for children.

However, it is not clear to me from either the policy paper or the article which it cites (why not link to the actual research??) whether the disruption rates refer to adopted children subject to a care order after adoption or who are accommodated under section 20 of the Children Act (i.e. by agreement with the adoptive parents). Both are ‘looked after’ children but only those subject to care orders will have gone back to court. Thus this simple comparison between disruption rates in adoption and ‘residence orders’ is not helpful without clearly stating what is meant by ‘returning to care’.

Campaigning groups such as the Parents of Adopted Traumatised Teens tell a different story about adoption stability – of adopted children disappearing back into the system under section 20, of inadequate or non existent help and support, of social workers who do not understand issues of attachment and trauma.

It is clear that adoption can be transformative for many children. But it must be the right option for the right child at the right time. Good decisions need to be made about children as early as possible. The government’s vision is to ‘radically reform the children’s social care system’ and to structure reforms around three areas: people and leadership, practice and systems; governance and accountability. There is a need ‘to focus relentlessly on front line practice. We need all services to deliver high quality, evidence based decisions for children every time’.

All of this sounds great but misses the fundamental point. If your foundations are not sound, you can build as fancy a castle as you like; at the first strong wind it will fall. The message from front line social workers, time and time again is that they are overworked to the point of physical and mental breakdown.  Case loads are simply too high to permit proper evaluation, analysis and reflection.  This won’t change just because the government ministers are looking at it, however intently. Things change when you identify what is going wrong and take active steps to deal with it. 

What steps are proposed here to deal with the fact that it is impossible for a social worker who is asked to juggle an unmanageable case load, to deliver ‘high quality evidence based decisions for children every time’ ?

The government proposes:

  • to launch a new development programme to support social workers to achieve and demonstrate required knowledge and skills and have their specialist knowledge recognised;
  • publish a new Specialist Knowledge and Skills statement setting out exactly what social workers making permanence decisions need to know and be able to do.

This is a level of magical thinking that is simply embarrassing in a government document. You can set out as many statements as you like telling people what they should be doing, but if those on the ground who are supposed to be ‘doing’  are prevented from ‘doing’ by a harmful working environment then decisions about children will continue to be made in the absence of proper analysis.

 

The law versus the Government.

The government just doesn’t seem to understand the law and how it operates. That is clear to me when I look in more detail at these proposals for a programme to ‘sharpen up’ social workers, at para 3.34. The ‘robust programme’ they want to develop to support social workers to ‘develop or sharpen skills’ includes:

building skills to ensure that court material is well prepared and clearly argued and developing social workers’ skills in presenting and defending cases in court effectively.

It’s TOO LATE to do anything about the evidence once it gets to court. This is not simply shutting the stable door after the horse has bolted, but after its been sent to the knackers yard and turned into glue.

The Ministers seem to think that the local authority’s case unravels in court because it is challenged in court. However, a poorly prepared case has already collapsed by the time it gets to court; the court process simply shines a light on its demise. No matter how fancy the statement of skills expected of a social worker, silk purses are not generally made from sow’s ears.

However, the government just doesn’t seem to ‘get it’. The general view in this policy paper is that the judiciary share responsibility for the down turn in adoption orders after 2013 following the judgment of the President in Re B-S.  That is despite the very clear subsequent reiterations that Re B-S did not change the law. And indeed it did not. The trenchant criticisms of the President were not directed at the law, but the failure of social workers and lawyers to apply it properly and consistently.

The law around adoption has always been clear. Adoption represents the most serious interference the State can impose on family life; it removes the legal status of the birth family and makes the child a member of another.

Thus, a child can only lawfully be adopted when there is no other realistic option. This is the essence of ‘proportionality’ under Article 8 of the ECHR. Not only is adoption the ‘last resort’ but the State has a positive duty before considering adoption to keep the family together, by offering help and support where possible.  The European Court has issued a number of judgments making it very clear what is required by the positive obligations pursuant to Article 8 – see Soares de Melo and SH v Italy. 

For further consideration of the necessary legal principles, see the post ‘When can the court agree adoption is necessary’ ? [This post also deals with the implications for decisions about adoption of the 26 week timetable in care proceedings – see edit below]

What was going wrong was not that the law was unclear – but that the analysis of children’s circumstances and applying the law was often poor. I have discussed this  problem at length in this post – Achieving best evidence and use in Children Act cases. The fundamental point I make is that proper analysis and assessment takes not merely knowledge, expertise and experience but time.

The policy paper may well be right, I haven’t studied all the relevant research in sufficient detail to confidently assert one way or another. Maybe adoption is always the best option for most children and we should be making sure we have as many of them as possible as quickly as possible.

But there are few hurdles to jump in the meantime. Simply saying ‘full steam ahead’ for non consensual adoption, is not going to find favour with either domestic or European law. We cannot simply ignore the demands of Article 8 of the ECHR.  There are obvious and immediate tensions between the cry of ‘more adoptions more quickly’ and the positive obligation upon the State to support families to stay together.

How does the government seek to reconcile these tensions? We don’t know because they don’t say. A policy paper that simply discusses its vision for adoption in isolation of what the law demands,  is a useless distraction.

If the Government fights the law, the law will win – eventually. The Government’s only legitimacy is that afforded to it by law. It will not be able to resile from Article 8 without enormous effort. But the battle will be long and expensive. And again the children are the ones who will suffer.

 

EDIT – but this is all about children on placement orders – so what’s the problem?

There is a view expressed that the ‘push’ for adoption will not corrupt or obscure the decisions made about children at an early stage because the government is focusing on children already subject to placement orders. Therefore the proper decisions have already been made about their future with their birth families.

I used to agree with this. I don’t anymore. Particularly not now that care proceedings are limited by statute to 26 weeks. I think there is at least a very real risk that this ideological push for adoption is going to impact on decision making in care proceedings. Cases are going to be ‘rushed through’ with a particular end in mind.

This is a potential breach of Article 8. Fair enough, if that is what you want to achieve, if this is what you think is proportionate. But don’t pretend you are doing something else. Be honest about what you think is important – and be prepared to take the consequences.

For example, see this discussion on Twitter from 2014.

I have historically argued quite hard against the existence of deliberate and malicious ‘conspiracies’ to remove the children from the working classes and hand them over to the middle classes. Government – you are not helping me.

 

 

Why do I worry about John Hemming?

This is a post by Sarah Phillimore

It seems that a lot of people genuinely have no idea about the full extent of John Hemming’s activities and the kind of people he supports. I am often asked on Twitter and elsewhere – but why don’t you support John Hemming? He does so much good and has exposed so much wrong doing?

So I am going to collect here the reasons why, so if I am asked that question again, my response can be speedy and efficient.

I accept that John Hemming has done some good for the family law system. I accept for example that he was right to be concerned about applications to send people to prison which were not being publicised or reported. He was right to be concerned about LA’s historic ignorance of and failure to comply with the Vienna Convention.

But. But. But. The harm he has done by his promotion of and support for the most malignant of the conspiracy cottage industry fantasists I am afraid far outweighs the good. And what is worse, he keeps on going and now appears to be the voice of our country to the European Parliament.

This is not right. This is not acceptable. This is positively dangerous.

But don’t take my word for it. Read these links and make up your own mind. I will probably be adding to this list

HIs historic activities

http://www.ministryoftruth.me.uk/2011/04/27/hemming-an-abuse-of-privilege/

http://www.theguardian.com/commentisfree/2007/aug/08/hemmingsway

His distortion and misreporting of important cases

http://www.headoflegal.com/2013/12/04/booker-hemming-and-the-forced-caesarian-case-a-masterclass-in-flat-earth-news/

http://www.pinktape.co.uk/cases/never-let-the-facts-get-in-the-way-of-a-good-story-eh/

https://childprotectionresource.online/the-woeful-state-of-our-debate-about-child-protection-part-ii/

Including his eagerness to make serious accusations with no evidence in abuse of his position

http://www.bailii.org/ew/cases/EWCA/Civ/2008/462.html.

See in particular para 88 of that judgment:

I find it not only unacceptable but shocking, that a man in Mr Hemming’s position should feel able to make so serious an allegation without any evidence to support it. In my judgment, it is irresponsible and an abuse of his position. Unfortunately, as other aspects of this judgment will make clear, it is not the only part of the case in which Mr Hemming has been willing to scatter unfounded allegations of professional impropriety and malpractice without any evidence to support them.

His support for Belinda McKenzie and Sabine McNeill

https://theneedleblog.wordpress.com/2015/03/27/hampstead-mckenzie-friends-and-terence-ewing/

https://theneedleblog.wordpress.com/2015/04/26/why-i-do-not-support-john-hemming/

https://hoaxteadresearch.wordpress.com/2015/08/03/amber-hartman-v-confidentiality/

[And if you don’t know why these women are dangerous, read the judgment in the P and Q case or this blog post by Barrister Blogger.]

 

His association with Ian Josephs and others of questionable repute

https://childprotectionresource.online/helping-parents-leave-the-jurisdiction/

 

He gives vulnerable people really bad advice

http://www.independent.co.uk/news/uk/crime/liberal-democrat-mp-john-hemming-tells-parents-suspected-of-child-abuse-to-flee-because-they-can-t-9054716.html

Some credible people seem to accept him as legitimate

https://childprotectionresource.online/censorship-and-the-protection-of-commercial-interests-the-woeful-state-of-our-debate-about-protecting-children/

https://childprotectionresource.online/the-woeful-state-of-our-debate-part-iv/

https://twitter.com/pennylilac/status/662787454085255168

http://www.marilynstowe.co.uk/2015/08/19/adoption-a-look-at-the-statistics-by-john-hemming/

And his refusal to ever accept that he has done anything unwise or wrong…

https://twitter.com/SVPhillimore/status/673292636820754433

 

EDIT. John Hemming is concerned that I ‘misrepresent his views’ about my claim that the refuses to accept wrongdoing over his patronage of Sabine McNeill and Belinda McKenzie.

Apparently he had no idea what they were up to prior to January 2015 and therefore should not be criticised for failing to withdraw earlier as their patron.

So the questions must be now:

  • if you DID NOT know what they were up to before 2015, despite your longstanding involvement with Sabine McNeill, why didn’t you? and
  • if you DID NOT know what they were up to, why on earth did you offer them your patronage without at least some cursory investigation of their activities?

Read what Sabine was up to in 2011. And how commentators Avalon111 and Jimmy were able to recognise what John Hemming apparently cannot.

As of May 2016, Sabine doesn’t seem to realise she has been cut adrift by John Hemming. Her support for him remains strong.

EDIT December 2018

Hoaxstead Research are covering the trial of Sabine McNeil for the breach of her restraining order which attempted to stop her continued harassment of the parents in the Hampstead case. Read here Sabine’s own account of the support and encouragement given to her by Hemming in her battle against the secret family courts.

 

So yes, I am afraid I remain really worried about John Hemming.

 

 

The woeful state of our debate Part VI: 8 questions to ask family judges.

On November 24th I attended the 9th Annual Family Justice Council debate at the Strand Palace Hotel in London. You can read more about the debate and the work of the FJC at this post on the Transparency Project.

To my surprise, I found Ian Josephs himself in attendance; he took the floor to deliver a speech which had a strangely familiar ring – he seems to repeat the same things over and over again on various blogs. Also, on every chair was a piece of A4 paper which set out ‘Eight Questions to Ask Family Court Judges’ which I assume was also the work of Mr Josephs as it is set out on his website.

But I thought it was worth deconstructing here – to remedy a little the deep unease I felt at seeing Mr Josephs take to the floor in the way he did; without challenge or rebuttal (I did not think it would be appropriate to intervene, given my likely inability to remain composed and polite). Its all very well people saying he is a harmless buffoon – but people do listen to him and worse, they sometimes take his advice. And as his actions with regard to Marie Black show, he isn’t harmless, not by a long chalk.

We have to tread a fine line between heavy handed censorship and giving dangerous people a platform. I felt his presence and his contributions to the FJC debate stepped over that line into giving him a degree of respect and credibility I do not remotely think he deserves.

But judge for yourselves. Here are his ‘8 questions’ and my responses.

1. Great Britain is the only country in the world where substantial numbers of pregnant women seek asylum in other countries to have their babies SAFE from UK social services and forced adoption.  Yes British mothers are fleeing the country in ever increasing numbers to avoid the adoption of their unborn babies. Surely this shows that something is very badly wrong?

The immediate problem with this is that it is strong on rhetoric, weak on substance. There is a network of people helping ‘mums on the run’ ; Josephs himself claims to have helped about 200 families over an undisclosed period of time while Brian Rothery alleged in 2014 that 1 family arrived in Ireland ‘every week’.

But the problem is, as Josephs has enthusiastically confirmed on this blog, he doesn’t carry out any risk assessments or keep any records. So where is he getting the information to support this very clear assertion that ‘substantial’ numbers of women are fleeing and that these numbers are ‘ever increasing’ ?

Nor is it true that ‘Great Britain’ is the ‘only’ country ‘in the world’ where pregnant women leave the country to avoid the authorities. I can’t comment on his use of the word ‘substantial’ as he doesn’t even attempt to define it. For example, the Nordic Committee on Human Rights (whose President Ruby Harold Claesson appears to associate closely with John Hemming, Ian Josephs and Sabine McNeill) claimed in 2012 that 

Since the beginning of the 1980’s, a great number of families have fled from Sweden in order to protect their children from being taken into care and placed in foster homes.

Yes, it does show something is very badly wrong if pregnant and desperate women are choosing to leave their  homes, their families and their support networks with the assistance of cash from Josephs. But what is wrong is that vulnerable people are being so poorly advised; it is notable that Josephs never appears to talk about what happens when it goes wrong – how Ireland, for example, certainly does not see itself as offering a ‘safe haven’ to those escaping a brutal and repressive regime and will co-operate with the UK authorities to return children. 

2. Adoption without consent is a last resort when nothing else will do say the legal guidelines but this cannot be true, since many other countries such as France manage to find other ‘resorts’ and thus never need to use this so called last resort, so why cannot the UK adopt the same remedies as the French for example?

It is a reasonable point that severing the legal ties between child and parent is something that England and Wales seem keener on doing than do other European countries – see paragraph 72 of this report for the Council of Europe in March 2015. But what are these other ‘remedies’ used by the French? It seems that other countries do not keep the same kind of data that we do about the number of children who are not living with their parents. But certainly every European country permits adoption; abusive parents are a universal phenomenon. It seems that other European countries make more use of long term foster care than we do – but this doesn’t necessarily mean that children remain in contact with their parents or that the parents can enjoy any meaningful exercise of their parental responsibilities.

Ian Josephs doesn’t seem to know what other ‘remedies’ or ‘resorts’ other countries use; to be fair to him, that isn’t widely circulated knowledge. Hopefully comparative lawyers such as Dr Claire Fenton-Glynn can undertake further research so we can better understand what other countries do and why they do it.  Ironically, it seems that Ireland may reform its historically restrictive adoption laws in order to increase the numbers of children adopted from foster care.

3. The President of the family courts in re J (a Child) said that since the abolition of capital punishment the most drastic decision any judge could make was to take its child from its parents. If a sane mother with no criminal record has her new born baby removed for ‘risk of emotional abuse’ she is punished without her breaking any laws. Surely punishment without crime is as illogical as it is wrong?

The problem with this is that Ian Josephs continually frames care proceedings and the removal of children as ‘punishing’ parents, when the aim of such proceedings is to protect children. Thus this question is inapt. I understand and accept that to many parents the loss of their children is a devastating emotional blow, but that doesn’t make it a ‘punishment’ inflicted by the state.  That is why new born babies can lawfully be removed. It is not to ‘punish’ the mother but to protect that baby. The law recognises that this is an exceptionally serious course of action and is only lawful if there is a serious risk to the child based on established history, such as drug abuse or persistent cruelty/neglect by the parents of their elder children.

‘Punishment without crime’ is one of his favourite catchphrases but its meaningless in this debate.

4. Many babies and young children are taken at birth for eventual adoption from mothers diagnosed with ‘borderline personalities’ and similar mental failings by court appointed experts. Unlike defendants in criminal courts parents in family courts are not allowed to get a second opinion from a private medical source to call as their witness without permission from the judge. Surely that is a violation of Article 6 (Human Rights Act) giving persons appearing in court the right to call witnesses in determination of their civil rights?

I don’t know what is meant by ‘many’ babies and young children taken because their mother has borderline personality disorder – which is a serious mental health issue. That isn’t my experience in practice. I don’t know what information or statistics he has to allow him to state this.

What does he mean by ‘court appointed experts’ ? Yes, the court must permit the instruction of the expert but the expert must be instructed and agreed by ALL the parties, including the parents. Reference to Article 6 of the ‘Human Rights Act’ is telling – he means Article 6 of the ECHR. Does he actually understand what he is referring to?

If not being allowed a second expert is indeed a breach of Article 6 of the ECHR then it is odd that there has been no successful challenge to section 13 of the Children And Families Act 2014 which makes it very clear that the courts will now be reluctant to permit even one expert, let alone two.

5. Research has shown that Open Adoptions have better results for children then closed adoptions used in the UK that break all contact with birth families. If parents were promised at least one annual contact by court order (birthdays or Xmas perhaps?) thus avoiding the heartbreak of no contact at all (letter box being remote and seldom continued) many parents would not go through the agony of contested hearings so would not this be a good thing?

I agree that we need more research and more open minded thinking about adoption and contact – which I have discussed previously here. I don’t know what research he is talking about. Certainly continued contact with birth families who cannot support the adoptive placement or actively attempt to undermine it, is not a positive experience for anyone. Sadly, the reason why so many adoptive parents and social workers are wary of continued direct contact with birth families may well stem from the kind of advice Ian Josephs gives to birth parents, see for example the first of his ‘Golden Rules’ :

IGNORE SOCIAL WORKERS!! They have NO authority .Don’t talk to them ,never go to their meetings (You will be outnumbered by at least five or six to one and bullied accordingly),never obey them,never never believe what they say,never sign any documents they give you, never allow them in your house(but if they then call the police let the police in but not the social workers),never let them assess you, or send you to the psychobabble charlatans !They are paid to diagnose nearly every parent who is sent to them with non existent illnesses such as borderline personality disorders or narcissistic traits = you don’t like or admire social workers !Many of them really are “the scum of the earth!”and deserve to be locked up for perjury and corruption!

And is it a serious suggestion, that parents will be ‘happy’ with the promise of one direct contact a year and will not then contest the care proceedings? This is an extremely odd belief for Mr Josephs to hold, given that he appears to dedicate most of his website into urging parents to simply refuse to co-operate in any way at all with social workers. His mindset is that removal of children is not justified unless the parents have committed a criminal offence so why should any parent who is not convicted in a criminal court give up their right to care for their child in exchange for one direct contact a year? This suggestion makes no sense.

6. Many babies are taken at birth for ‘risk of emotional abuse’. Something unique in Europe and impossible for parents to defend against court experts who are usually judged more likely on probabilities to be correct than a distraught mother. When adoption follows due to risks that may never happen (from an ex partner who was violent for example) surely these at least are cases where forced adoptions should simply not be allowed?

I don’t know how many babies are taken for ‘risk of emotional abuse’. In my experience at least this is rare. Cases where new borns are removed usually involve serious and long standing issues around drugs, violence and/or mental health difficulties, often the mother has had other children removed who did actually suffer harm.  Again, the reference to ‘court experts’ – there is no such thing.

I note also the trivialising of the violent ex – a repeated refrain in the comments of Mr Josephs. He has little understanding or patience with any suggestion that a women who choses a violent partner may do so out of her own problems with low self esteem or co-dependency and may go on to chose other violent men in the future ,unless she can get some help to break the cycle (for example via the Freedom Programme). Violent men are a massive risk to children.

One of the most unpleasant and uncomfortable parts of the FJC debate for me was when Ian Josephs got a big laugh from the room when he suggested that no Italians would have their children under the UK’s approach to domestic violence. This was offensive and unreal. The problem with violent partners is not simply a bit of excitable shouting as per some offensive Italian racial stereotype. The impact of exposing children to violence is real and serious and Ian Josephs continually shows that he just doesn’t understand.

7. Article 10 (Human Rights Act) reinforces our democratic right to free speech. Surely it is a gross violation to gag mothers whose children have been taken (for possible adoption) by preventing them under threat of jail from identifying themselves and their children when protesting to the media. Similarly is it not also a violation of Article 10 to gag both children in care and parents during contact sessions preventing them from reporting abuse or injuries received in care, discussing their cases, whispering or discussing adoptions under threat that contact will be immediately stopped if parents or children break these rules?

Again, it is NOT the Human Rights Act he means, but Article 10 of the ECHR. I agree he has a point about our stringent rules on confidentiality in children proceedings – I think they are too strict and they should be relaxed; a proposition with which the President of the Family Division agrees. We do need to be able to talk about important issues, such as the State’s intervention in our family lives.

But the rest of this is odd. It underscores that Ian Josephs – in common with so many of the other campaigners in this field – don’t really see children as anything other than adjuncts of their parents. It is the parents’ feelings that matter. The children are there to mop up those feelings. It should be immediately obvious why it is not desirable in a contact session to start conversations about the proceedings or the fact that the children might be adopted. Younger children are likely to be simply distressed and confused by such conversations. Contact should be about enjoying the time with one another, not a platform for a parent to make their case to their children.

8. In many cases parents who have committed no crimes are forbidden by the family courts to contact their own children directly or even indirectly by email etc. Surely that must be a flagrant violation of Article 10 allowing free association when parents as a consequence jailed for breaching the order by sending a birthday card or waving at their own children in the street?

The reason why a parent would be forbidden to so contact their children is almost always because when the parent has been allowed direct contact they have abused that in very serious ways. For example, Vicky Haigh who attempted to brainwash her daughter into believing that she had been sexually abused by her own father. It is a useful indicator of Mr Josephs’ mind set that he cannot accept that Vicky Haigh is anything other than a victim of the Evil Secret Family courts. Again, I suspect this flows from his philosophy that children are important only in so far as they reflect their parents’ desires and emotions.

 

The woeful state of our debate Part V: Linda Arlig, Her Hammer and some Nails.

The curious ‘rhetoric case’ of Linda Arlig

This is a post by Sarah Phillimore

Over the past two years I have been repeatedly referred to a document authored by Linda Arlig of the Department of Social Science, the Psychology Section of the University of Orebro, Sweden.  It is called ‘The Rhetoric Case: Persecution strategies in a child care order investigation’.

After the most recent of such referrals, by a McKenzie friend who is adamant that professionals routinely lie and are corrupt, I thought I had better actually read it and make up my own mind.

It is a very curious document. I attempted to find out more about Linda Arlig and the University of Orebro because it did not seem to me that this could be a serious academic investigation from a credible institute.  I found a copy of her report (first posted December 2013) on the website for the Nordic Committee for Human Rights. At first blush this looks a very professional set up, until perhaps one visits the ‘about’ tab and reads:

In Sweden, and the other Nordic countries, the welfare state has permitted the social authorities to take children into public care. The instrument used is the Law on the ward of Minors (LVU). Thousands of children have been – and are being – taken from their parents and placed in foster homes among complete strangers. These foster homes are often of poor quality and their prime aim is to earn money off the foster children. Foster parents are very well paid to take care of foster children. The families whose children are taken into public care are often lone parents, unemployed and/or on welfare. Immigrant families are very often exposed and affected in this context. The social authorities are very quick to jump to the conclusion that these parents could impossibly be suitable parents. It goes without saying that this is not necessarily the case. The fact that a person does not fit into the very competitive work-market does not make him or her unsuitable as a parent.

In the Nordic countries, quite unlike the Catholic countries of Europe, very little respect is shown for family and private life. The right to respect for private and family life is guaranteed by the UN Declaration of Human Rights and Article 8 of the European Convention of Human Rights and Fundamental Freedoms.

So, a website with a clear and partial agenda, one that might come to a surprise to the Forced Adoption campaigners in the UK who say we stand alone in Europe as a beacon of repression and unfairness to birth parents. But not perhaps John Hemming, who attended a conference with the NCHR President in 2014.  So I draw some conclusions about the agenda of the NCHR from the company they keep.

EDIT: I draw even more negative conclusions about the integrity of the NCHR when I see who else they associate with, including Sabine McNeill and Ian Josephs. 

The University of Orebro appears to be a real place although my google sleuthing reveals very little else about Linda Arlig.

It  may be that some of the difficulties I have with the paper stem from poor translation, despite four people being credited with the translation to English. For e.g. frequent references in the text are made to a ‘social secretary’ which I assume from the context must mean ‘social worker’.

However, poor translation can only account for some of the criticisms I am about to make.

The general point about rhetoric

The purpose of the ‘art of rhetoric’ is to use language to control, steer and influence people. There are various strategies one can adopt in order to further this end, such as using emotional and stirring language or keeping quiet about inconvenient bits of information. It is clearly not a helpful strategy in the child protection field where language should be as clear and precise as possible in order to assist the court make proper findings about what has actually happened or is likely to happen, and thus to make the best order for the chid.

This report in particular

Having printed it off to read – the font on the NCHR site being too small for comfort – I have 98 pages. The Abstract states :

The purpose of this study is to make a critical examination of six official reports in an LVU (Care of Young Persons Act) investigation, to detect the possible occurrence of persecution strategies in the social welfare service reports and, in that case, to define the strategies used and examine whether the investigation complies with the legitimate claims of objectivity and impartiality.

In the official reports, fifty-six different persecution strategies appear. Definitions of the strategies found are produced, and their application in the case will be shown in passages from the reports. The main patterns seen in the investigators’ actions are: “Power defines reality,” and “influencing and persuading the reader”. Two techniques were found in the material, withholding and fabricating, which co-operate to make an investigation defective.

The strategies have been divided into six groups depending on their purpose:
Persuading the reader through language: contains twelve strategies that the investigators use to try to make the reader come to the same conclusion as themselves.
Making the client seem pathological: contains eight strategies that describe the client as peculiar, mentally unstable, aggressive, etc.
Ignoring objectivity aspects: contains seventeen strategies such as, for example, ignoring the client’s perspective, suppressing information, exaggerating information, fabulation, irrelevant statements, etc.
Exercising power and control: contains six strategies that are all connected with the authorities trying to take control of the client’s life.
The authorities know best: comprises five strategies containing blind faith, moralising, self-justification, emphasis on the social authorities’ resources and exceeding the limits of one’s competence.
Feel-think-believe-experience-interpret: contains nine strategies that are influenced by the investigators’ subjective interpretations, arguments, etc.

Throughout the investigations, the client’s perspective is ignored and references to sources are missing. My conclusion is that the investigations are defective, and that they violate the Constitution Act, Chap. 1, Para. 9, containing directives concerning objectivity and impartiality. The documentation of the case contains a considerable number of distinct persecution strategies.

However my report appears to contain reference to only one distinct case; that of Elizabeth and Anne Edner. The first 42 pages are taken up with explaining what is meant by persecution strategies with frequent references to Edvardsson, I assume another Swedish academic.

Lying as a strategy

One particular alleged ‘persecution strategy’ piqued my immediate interest; the assertion that professionals routinely fabricate evidence.

  • Arlig asserts  that to ’emphasis that the authority knows best, data are [sic] fabricated by means of various persecution strategies’  in order to create ‘monster parents’  [page 9/98].
  • Arlig refers further to ‘secret evidence error’ where ‘one keeps evidence secret. If evidence is missing there is fabulation or lies’.
  • She cites Moijer (1989) who says that some experts use professional terms to impress their audience or ‘sometimes simply to mislead’
  • para 5.4.2. at 34/98 makes explicit reference to the ‘fabulation strategy’ where an investigator ‘generalises, exaggerates, or shifts from making intimations to presenting them as certain facts… this is expressed through words being removed, added, changed…’
  • Para 5.4.4. at 35/98 makes explicit reference to the ‘Lying strategy’  where ‘a statement is consciously made although the author knows that it is a lie’.

Thus the immediate and obvious problem of this report is that Arlig is clearly keen to fudge completely the distinction between:

  • a deliberate lie, told with conscious knowledge that it is untrue; and
  • a statement that is misleading because the wording used is exaggerated, imprecise or incomplete.

That she wishes to fudge this distinction is clear from this paragraph at 35/98

Lies can be presented in different ways… there is the clear lie, which consists of saying something when one knows that it is not the case. But being misleading by concealing the truth can be just as effective …. the result is often the same’.

The fudging of this distinction is a problem for the credibility and integrity of her work. There is an immediate and serious distinction between the two offences. Neither are desirable, but the deliberate telling of a lie is at the highest end of the scale of moral turpitude for a professional. It is an entirely different and bigger problem than the issue of misleading the reader through careless or imprecise use of language.

I cannot then find any further attempt to distinguish between the ‘fabulation’ and the ‘lying’ strategy, but of course, whenever I am referred to this report by those of the Forced Adoption lobby, they invariably cite it as ‘proof’ that social workers routinely ‘lie’ to ‘win’ cases against parents.

The methodology of the report

Is curious to say the least. Arlin comments at 10/98 that ‘the examination of the material was not based on a critical investigative method. One important starting point in this work was not to form any opinion about whether the application for care with the backing of LUV was right or wrong’.

However, the material that she did examine did NOT include the actual application for the order to remove Anne from Elizabeth’s care and that ‘makes it impossible for me to check from where the original information was obtained’.

This makes a nonsense of the whole endeavour. Elizabeth Edner is clearly described in the papers as having serious historic problems with alcohol misuse. Her baby daughter was removed from her care when she was found drunk in charge of her. Attempts were made to keep mother and baby together at a family welfare clinic but Elizabeth absconded and the police had to be involved. Concerns about Elizabeth’s mental state and irrational and aggressive behaviour (including starting fires) continued and Anne remained in foster care.

If we haven’t actually established whether any or all of this is true then it makes a mockery of the exercise that Arlig then undertakes. Despite her starting point of not making any assumptions about whether the application for a care order was ‘right’ or ‘wrong’ she goes on to apparently conclude that it was ‘wrong’ judging from the sheer range and scale of the ‘persecution strategies’ that she finds in the paperwork that she does have.

Arlig is a wonderful example of the old saying – to the man with a hammer, everything is a nail. Her eagerness to identify such ‘persecution strategies’ is at times comical. One report about Elizabeth expresses concern that she has repeatedly telephoned the chairman of the social welfare committee at night, behaviour described as ‘desperate and boundless’. Arlig is able to identify from this concern [72/98]

… an antidemocratic strategy, since the committee members appear to have no office telephones and it is democratic right to contact politicians. The idea in the text appears to be that one should not make use of one’s democratic rights or act democratically in one’s own defence’.

Calling a local politician frequently, at night, presumably at their own home is hardly a convincing example of a rational exercise of one’s ‘democratic right’.

Arlig is entirely unconvinced that anyone should have had any concerns that Elizabeth described the police who tried to intervene after she locked herself in a room with Anne as coming in black clothes ‘like black witches’. This is explained [63/98] as ‘normal’ and simply an example of language as metaphor. Maybe. Maybe not. But I fail to understand how a social worker writing in a report that they found this reaction to the police troubling is automatically indulging in a ‘persecution strategy’.

Some good points

The tragedy about this report is that there are some good and useful discussions about the way in which social workers can and do present evidence in an unhelpful way. All legal practitioners will be sadly familiar with the social worker who exceeds his or her competence in offering for e.g., a diagnosis of a psychiatric condition, or is over confident in their opinions, or who has missed out some important piece of information that puts a parents’ behaviour in a clearer context.

I fully accept that there needs to be more understanding of how and why parents can react in ways which social workers perceive as aggressive or violent. I accept there needs to be more understanding of how the extreme stresses of child protection investigations very often can impact badly on parents and not allow them to present themselves consistently as ‘their best selves’.

But this report is not the way to go about it. The evidence presented about Elizabeth Edner is sadly clear. Accusing the social workers of adopting various deliberate ‘strategies’ against her to make their case is surely an argument that can only be made if there had been investigation of the primary facts – her alcohol misuse, her poor mental health – and those primary facts had been shown to be false or grossly exaggerated. Rather, the snippets of the investigation that Arlig cites appear to show a the compassion of the social workers, and their attempts to see things from Elizabeth’s perspective; recognising the stress that was upon her and how this might impact on her behaviour.

But the bottom line appears to be that this was a mother who put her daughter at immediate physical harm due to being drunk when responsible for her primary care. Arlig continually criticises the social workers for presenting a picture of Elizabeth Edner as an aggressive and mentally ill alcoholic – despite the clear information presented that this was actually what she was.

The sad irony is that a piece of work designed to show case the dangers of rhetoric is itself just another example of it.

EDIT: HHJ Horton’s judgment concerning Hampshire CC in November 2015 deals with what he calls an ‘exceptional’ case of deliberate lying on oath and alteration of reports by social workers. Let’s hope he is right about the ‘exceptional’ bit.