Other thoughts

The woeful state of our debate Part IV – Cascading the judgment in Re N

This is a post by Sarah Phillimore

On November 2nd, ironically as I attended a workshop on cross-border child protection issues, I received an email with the judgment in the case of Re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112. This was a judgment from a hearing heard at the end of March 2015 but only now did it ‘cascade’ throughout our legal ranks.

The judgment covers a wide range of already familiar territory on matters of jurisdiction in care proceedings involving children from other countries. When the case was emailed I wondered if it was merely coincidence that this wider ‘cascading’ occurred just before the European Parliament Petitions Committee were to conduct their ‘fact- finding’ mission in London:

The Committee on Petitions is organising a Fact-finding visit to London on 5 – 6 November 2015. The aim of the visit is to meet authorities, practitioners (lawyers, social workers) and other stakeholders to exchange views on the petitions related to interventions by the UK authorities on issues of parental responsibility and allegedly abusive decisions on adoption as well as the placing of children in foster care without the consent of biological parents.

When I read Re N I saw that it was unlikely to be coincidence; this judgment appears to be a deliberate attempt to explain the practices and procedures of our court and I assume was thus ‘cascaded’ at this time for the benefit of the Petitions Committee. As the President comments at paras 4 and 5 of his judgment:

During the hearing of these appeals, the issues have broadened, and we have necessarily had to consider a number of very basic but nonetheless fundamentally important issues to do with the application of our domestic adoption law in cases with a foreign element. This judgment is therefore both wide-ranging and in consequence lengthy, as has been its preparation. This has, most unfortunately, led to even more delays in a case that has already been unduly delayed. I am very sorry.

Since our judgments may be read by those not familiar with our domestic constitutional arrangements, I should explain at the outset that within the United Kingdom of Great Britain and Northern Ireland (what for ease of reference I shall call ‘the United Kingdom’) there are three quite separate legal jurisdictions: England and Wales (which for ease of reference I shall call ‘England’), Scotland and Northern Ireland. We are sitting as judges of the Court of Appeal in England, applying, in addition to the relevant international obligations of the United Kingdom, the domestic law of England.

I am a little taken aback that the parties in this case thus presumably had to wait 7 months for the judgment in this case so that it could also stand as an ‘Introduction to Care Proceedings’ for our European brethren.

I certainly don’t dispute the need for greater clarity about what we do in the family courts and why we do it but why should the vehicle for this educative mission be a judgment in a case involving children? Matters concerning children should be resolved with the least possible delay.   If matters really need spelling out for the European Parliament, hasn’t that already been done in the report of Dr Fenton-Glynn? 

My unease is compounded by what the President then goes on to say about section 20 accommodation from paragraph 157 onwards. in his eagerness to show that we are putting our house in order with regard to the abuse of this section we now appear to have lost a useful and pragmatic mechanism to take some of the heat out of care proceedings.

It was common practice, when a LA was worried about a child returning to live with parents but the parents would not or could not agree to an interim care order, that the parents would consent to section 20 accommodation but agree that they would not exercise their right to remove their child without giving a period of notice, for example 2 weeks. This was a workable compromise which kept the child safe without pushing the parties into an early adversarial battle about whether or not an ICO should be made.

The President says this at para 169:

This is related to the fourth problem, the seeming reluctance of local authorities to return the child to the parent(s) immediately upon a withdrawal of parental consent. It is important for local authorities to recognise that, as section 20(8) of the 1989 Act provides:

“Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section.”

This means what it says. A local authority which fails to permit a parent to remove a child in circumstances within section 20(8) acts unlawfully, exposes itself to proceedings at the suit of the parent and may even be guilty of a criminal offence. A parent in that position could bring a claim against the local authority for judicial review or, indeed, seek an immediate writ of habeas corpus against the local authority. I should add that I am exceedingly sceptical as to whether a parent can lawfully contract out of section 20(8) in advance, as by agreeing with the local authority to give a specified period of notice before exercising their section 20(8) right.

Because of this judgment, I have already had to have conversations at court about whether or not the LA needed to apply for an ICO given the doubt now cast on the legitimacy of allowing parents to agree to a ‘notice period’ before withdrawing their consent to section 20.

This is potentially a very unhappy position to be in. The President may well be right that the parent cannot lawfully contract out of a statutory provision BUT the signing of such an agreement must surely mitigate against any later accusations that the LA have committed a crime! If the parties to care proceedings are not encouraged to make these kind of sensible and pragmatic ‘holding’ arrangements then what we are inevitably looking at is more contests at an early stage, more pushing parties into adversarial positions, more ‘findings’ being made at shorter hearings. The impact on the court lists will be obvious and severe.

As I keep saying (because it seems very few are listening) we will not solve the problems in our current system by demonising local authorities and those who work there. Is it not possible to point out problems without creating more? Judgements from our courts should not be delayed by many months in order to play to an audience far wider than our own jurisdiction. We are surely entitled to a system that we do not have to keep continually defending.

LATER THIS EVENING EDIT

I understand better the President’s anxiety to make sure his views are heard, when I remind myself who is discussing these issues with the European Committee.

 

 

FURTHER EDIT THIS MORNING

John Hemming confirms what he has been saying to the European Parliament. When a debate is predicated on the ‘immorality’ of a system, then hope of a constructive debate is seriously diminshed.

The woeful state of the debate about child protection Part III: UKIP’s contribution

The UKIP contribution to the debate.

This is a post by Sarah Phillimore

On Monday 26th October the Guardian published an article by Douglas Carswell the UKIP MP.  This called for the family courts to ‘open up’ in order to avoid ‘outrageous injustices’.  UKIP had previously discussed the child protection system in their manifesto, calling for a ‘far reaching child care review’:

A misplaced sensitivity to issues of race and religion, combined with fear, has been
shown to have stopped many investigations into the abuse of children. There is also
concern among the public at rising levels of ‘forced’ adoptions. Some of those charged
with protecting children in care are letting serious cases of abuse and maltreatment slip
through the net. Our children’s wellbeing lags behind many of our European neighbours
and we are seeing alarming rates of self-harm and poor mental health. UKIP is committed to bringing forward a full, open review of all childcare and child protection services in Britain, with a view to initiating wholesale reform of a system that is clearly failing. Our children deserve better and UKIP will investigate failings without fear or favour to deliver a safer, brighter, fairer future for our children.

In the Guardian article, Douglas Carswell was publicising a policy paper on opening up the family courts, written with Duncan Simpson, the deputy director of UKIP’s ‘parliamentary research unit’. I haven’t yet had time to read this policy paper in full, but note the Guardian’s precis of its main conclusions:

  • More use of special guardianship orders to allow grandparents to take over the care of a child.
  • The opening up of placement and adoption order proceedings to the media on the same basis as other family law proceedings.
  • A requirement that all judgments be published, except where the presiding judge seeks and obtains a contrary order from the president of the high court family division.
  • The media to be allowed access to expert reports on an anonymised basis with restrictions enforced only in the most exceptional cases.

The first suggested reform indicates that UKIP have a pretty shaky grasp on what is actually happening on the ground; particularly the disquiet expressed from many about the significant increase in the use of SGOs and how these don’t necessarily represent what is in the best interests of an individual child.

I have no problem with the second third or fourth; I think they are sensible and should be implemented.

However, the devil as always is in the detail. Douglas Carswell is quoted:

Ukip’s only MP suggested that his reforms would have prevented the heartache suffered by Karissa Cox and Peter Butler, who lost custody of their child after being wrongly accused of abuse. The child was put up for adoption after the couple took their baby to hospital after the six-week-old started bleeding from its mouth. Staff at the hospital noticed bruising on the baby, prompting the authorities to take the child into care and to charge the parents with child cruelty.

The parents were cleared this month, by which time the child had been adopted. “If our reforms had been in place that case could not have happened,” Carswell said.

The obvious question is – how on earth could the reforms as set out above have had any impact whatsoever on a case where the medical evidence was incomplete or incorrect – which was the fundamental problem for Karissa Cox and Peter Butler:

Defence experts discovered the child was suffering from Von Willebrand disease, a blood disorder that causes a person to bruise easily, as well as a vitamin D deficiency, which causes infantile rickets. An independent radiologist, commissioned by the prosecution, concluded that he doubted there were any fractures at all.

But its the next bit that really leapt out at me:

The Ukip MP said he accepted that in many disputed cases children need to be taken into care or adopted against the wishes of the parents. “I am not saying it is wrong for the state to forcefully break up a family. There are times when it has to do that.

“But at least the evidence should be tested in an open court. At least there should be some opportunity for people to know what it is they are being accused of ... and at least the people who are preparing the evidence ought to have met the people they are giving evidence about.”

First problem: to say that parents in care proceedings don’t have an opportunity to know the case against them is utterly and bizarrely wrong. Not only do parents know the case against them but the state will pay for their lawyers to challenge the case against them. It is baffling why lawyers are continually air brushed out of the narrative about the Evil and Secret Family Courts; maybe its because we are just so utterly ineffective, ‘legal aid losers’ in the pockets of the local authorities, etc, etc, etc.

Its an extremely irresponsible untruth to keep bandying about. Because no doubt it terrifies vulnerable people who are facing these kinds of proceedings. Is UKIP simply ignorant of how the court process works? Of the rule of law? Of the opportunities to challenge evidence? To cross examine witnesses, professional or otherwise?

Second problem: what does he mean about ‘people preparing the evidence ought to have met the people they are giving evidence about”?  Is this an accusation that expert evidence about parents’ mental or physical health is routinely provided by experts who don’t meet the parents? If he is saying this that, in my view it simply isn’t true – I accept there have been some worrying examples of bad practice but these are rare –  in my own experience spanning 15 years I have never had to deal with a psychiatrist or psychologist who reported without meeting my parent client (although I did make a complaint about a psychologist who was prepared to make an updating report 2 years after she met the parents, without seeing them again) .

Is he saying that doctors examining X-rays or the bruises on a child’s body ought to meet the parents first? If so, why?

Either UKIP just don’t know how the court system works, or they don’t care and would rather a sexy soundbite for a national newspaper than a contribution to responsible debate. This article doesn’t fill me with optimism that their ‘parliamentary research unit’ is going to make an helpful contribution to the debate about how we make our child protection system better.

What a pity. Because as UKIP set out in their manifesto they recognise that many things are going very badly wrong for our children. The last thing we need is just more ill-informed noise to distract us from the realities.

I will now add the UKIP policy paper to my reading list. Maybe I will find some answers to my questions there. But I hope you will forgive me if I am less than optimistic.

The woeful state of our debate about child protection, Part II: Hemming and the Latvian case

John Hemmings address to the Press Conference in Riga, Latvia.

On 31st August John Hemming uploaded onto YouTube a video.

I mentioned this on Twitter and expressed the hope the Latvian authorities are getting information from sources other than this. John Hemming has asked me to explain why I am concerned with what he says in his video.

What’s my problem? Summary

What’s wrong with this video? In general, to conduct the debate about the child protection system in this way, using inflammatory language, offering assertions as fact, displaying confirmation bias throughout and simply ignoring anything which might not support your argument simply underlines for me the very sad fact that the state of debate about our child protection system is woeful. It is embarrassing that we cannot do better.

It is all the more tragic because John Hemming does make some good points. He is right to point out that until recently LA were NOT aware of their obligations to inform other States that their citizens were facing care proceedings and the removal of their children. But that has been addressed and dealt with.  John Hemming should get credit for making a fuss about that, because it is important.

However, whatever good he has managed to do has, in my opinion, over many years been sadly submerged under a pile of ill informed and inflammatory assertions.  This does not promote debate or aid greater understanding or help children. Rather it drives proper debate further underground and the children are left to suffer in a system which is arguably not fit for purpose. 

If he is going to set himself up as an expert advising the Latvian authorities, I hope he will take the time to explain further to them his role as a ‘champion’ against the child protection system, and in particular his links with Ian Josephs and the ‘mums on the run’ network. 

I think the Latvian authorities ought to be fully informed about the background and activities of someone who proposing to ‘assist’ them in actions against another State. It is then a matter for the Latvian authorities whether they think they will be helped or hindered. For my part, I would urge them to act with extreme caution before accepting uncritically John Hemming’s views of the child protection system.

Particular problems.

It’s about a 5 minute video. This is what he says just 31 seconds in:

The Government sets targets to destroy families.

Why frame your argument in this way, right at the outset? Is this kind of inflammatory language remotely helpful in promoting debate and understanding between two States? Is this really what he thinks is the purpose of the child protection system in England? If that is what he really thinks, does he accept that he is going to need to provide some pretty clear evidence in support of such an astonishing allegation?

At 36 sections he says that the LAs act wherever possible to remove children from their families’ Again, an inflammatory statement which is not a reflection certainly of the current law that makes it crystal clear that adoption is the option of last resort.

He references a recent case which I won’t identify here as it seems that the whole purpose of this video is to encourage the Latvian authorities to put pressure on the Supreme Court to consider an appeal in this case. An interesting way to mount a legal challenge, using ‘interesting’ in the sense of ‘utterly inappropriate’.

He makes particular assertions about the state of the evidence in this case, claiming that the only real independent evidence was a core assessment, which was ignored because the SW Managers put pressure on to get another child to meet their adoption targets. It will be interesting to see what the Supreme Court make of this assertion.

He refers to statistics which show that ‘obviously’ a LA was biased because they have targets to increase adoptions ‘year on year’. Is he going to discuss with the Latvian authorities the efforts made by the Transparency Project to unpick and analyse his statistics? It clearly is not as obvious as he would wish to maintain that the Merton KPIs are irrefutable proof of a Government set target to ‘destroy families’.

I don’t disagree that the current ‘push’ for adoption is concerning – and I note this particular blog post with serious concern – but after years of searching, I haven’t been able to find clear or indeed any proof that the Government is setting out to ‘destroy families’. There are obviously problems in the system which we need to deal with urgently – but deliberate, malign targets of destruction are not one of those problems. See the ‘Forced Adoption’ post for further discussion.

The more time we waste posturing about issues which don’t exist then the less time we have to deal with the problems that clearly do. What does John Hemming have to say for example about the clear and stark regional differences about rates of children taken into care? The Merton rates are tiny; about 12 children a year are adopted or subject to a SGO. You are much more likely to be taken into care if you are a child in Blackpool. Why is this? Why isn’t John Hemming interested in this?

Could it be, a cynical voice inside me utters, that it is just more ‘exciting’ to set oneself up as an advisor to the Latvian government and enjoy the accolades that attach to such campaigning, rather than actually care about and do something about the depressing and mundane realities of inequality in our society? Not as much press interest in the latter I suspect.

The debate at the Transparency Project is here. John Hemming has been asked a number of questions about his statistics which at the time of writing he has failed to answer. I am particularly interested in his assertion that he has statistics from 1995 which will prove that there are ever increasing numbers of young children being taken into care and subsequently adopted. I would like to see this evidence.

 

Conclusion

As Claire Fenton Glynn commented on Twitter about John Hemming’s video.

Claire Fenton-Glynn ‏@CFentonGlynn
@SVPhillimore A number of fundamental errors of reasoning. There are definitely flaws in English system but this clouds productive debate.

Please. We simply have to do better. We are educated adults. We are surely capable of a debate that reflects all the nuance and complexity of the current problems we face.

I have to believe that but at the moment I am seeing precious little to reassure me from any source.

Censorship and the protection of commercial interests – the woeful state of our debate about protecting children.

This is a post by Sarah Phillimore
On the morning of Friday August 21st I posted a comment on the Marilyn Stowe blog after the former MP John Hemming had written a guest post about adoption statistics. The biography attached to his post described him simply as a highly educated and respectable former MP and councillor. It was, perhaps unsurprisingly, silent as to any of his other activities which have caused me and many others serious concern over the years.

My comment on this piece, about the need to be aware of and alert to these activities of Mr Hemming, led to an invitation from that site’s owner to contribute a guest post. I was happy to do so as the issues I wished to raise are, in my view, serious and significant.

Later that day I received an edited version of my post and was asked to accept the revisions made. I did not receive that email until fairly late on Friday evening. It was not until sometime later that I was able to sit down and give these revisions my full attention. When I did, I was unpleasantly surprised by what I found.

Of course, it is entirely up to Ms Stowe what she permits on her blog. I cannot dictate to her what she publishes. But I am very unhappy to note that significant portions of what I wrote have been removed, despite everything that I had written being

  • true
  • highly relevant to my argument and
  • already published elsewhere and well and truly in the public domain.

Most concerningly, a sentence from the judgment of Wall LJ in RP v Nottingham had been removed.

 

Search Engine Optimisation versus open and honest debate

I queried this via email and was told that the site would be penalised in its google rankings by relying on links to other sites in the way that I had done and the commercial interests of the site must be protected.

As I pointed out in reply, it is difficult to see how including the final sentence of a paragraph from a judgment from Wall LJ would have negative implications for any Google rankings. Ms Stowe was also happy to include a link to my own site when discussing an article about other European countries, but would not include a link to a post setting out the connections between Hemming, Josephs and Booker.

I commented further:

I think this is a very important issue – either you are unable to post relevant information because it may damage the site’s commercial interests OR there is some other reason, as yet undisclosed to me, as to why this information can’t be published by you.
I am pretty ignorant of SEO issues and how Google issues penalties, so I will take your word about that. But I will remain very puzzled why the words of a former President of the Family Division in any way are relevant to issues of Google ranking and protecting your site’s commercial viability.
And it does of course raise a wider and even more important issue about how the necessary debate about the child protection system is best served if such an important and well respected source such as yourself, finds itself unwilling to discuss certain issues because they may impact on the commercial interests of the site.
Are your readership aware of these potential constraints? I certainly wasn’t.
[EDIT I have just received an email from Marilyn Stowe to say that they are going to ‘call it a day’ and will not publish my post. I have received no further clarification about why the edits to my post were required or necessary, other than that it is the policy of the blog to be ‘non confrontational’]

I am left in this rather uncomfortable position. If the reason given for the editing is correct, then information which is a) true b) relevant and c) in the public domain is being excluded from the debate on the site, to protect its google rankings and its commercial interests. However, I am unable to accept that as a reason for censoring a quotation from a judgment of a High Court Judge.

So what was I trying to say that wasn’t fit to publish?

I will set out my original post below and the edits and you can make your own minds up about the reasons for editing. But whatever the reasons, this cannot be the way to conduct the necessary open and honest debate about the child protection system that is needed now, more than ever.

I of course am happy to provide a right to reply to anyone I discuss in my posts. I am happy to be educated further about the impact of Search Engine Optimisation tactics on internet debate. I would also be delighted to know that Mr Hemming is prepared to renounce his links with Ian Josephs and Christopher Booker and to put his obvious drive and intelligence to better use.

But unless and until he does that, if he wishes to position himself as a credible and reliable voice in this crucial debate, others are entitled to have the fullest possible information about what he actually believes, with whom he associates and the risks they pose.

I set out my original piece below and will indicate in the text in bold what has been removed or altered. I have not included the minor edits regarding a choice of word or phrasing. It is the wholesale removal of pertinent facts to which I very strongly object.

 

Open and honest debate about the child protection system is needed now more than ever.

I am a family law barrister of 15 years experience and the site administrator of www.childprotectionresource.org.uk which was set up on 2014 in an attempt to provide accurate information to all those involved in the child protection system.

This guest post arises out of another guest post published on this site by John Hemming. 

On the face of it, this post looks like a respectable attempt to analyse statistics around the number of children adopted in the UK. I accept now, and have accepted for years, that we urgently need an open and honest debate about what is really going on in our child protection system.

Although Mostyn J (and many others) are simply wrong to opine that there are ‘only’ 3 (or even no other) systems in Europe that permit forced adoption – see this post from Claire Fenton Glynn – it is true that England and Wales are by far the most enthusiastic proponents of ‘forced adoption’ of all Council of Europe member states and we are entitled – even morally obligated – to discuss this and to understand why.

However, just because the debate is necessary and important, does not mean we should not take care about who is contributing to it and what they are saying.

I have been concerned for many years about the motivations of many of those prominent figures in the debate and the impact they are having. Mr Hemming is described in this guest post as a highly educated and respectable former city councillor and MP.

But there is another side I think it is important to share. Disclaimer: My run ins with Mr Hemming now extend to four years of internet debate. He has made formal complaint about me to the Bar Council (not upheld) and gave an interview to the Daily Mail following his expulsion from the mumsnet website in 2014, which curiously felt it appropriate to publish both my real name and my mumsnet user name side by side. It is entirely possible that my dislike for what I perceive as Mr Hemming’s tactics of intimidation, [this has been edited to read: ‘it is entirely possible that my dislike for Mr Hemming’s tactics…] means I am not able to take a dispassionate view about his activities.

Therefore I present to others the facts so that they may make up their own minds.

The family law system as ‘evil’.

A good starting point to understand why Mr Hemming has nominated himself as a crusader against the ‘evil’ family justice system can be found in Jonathan Gornall’s article in 2007. Mr Hemming then repeated his allegations about the ‘evil’ and corruption of the family justice system to Wall LJ in the case of RP v Nottingham in 2008

It is plain to me from these documents, that in addition to the allegations set out above, Mr. Hemming believes that HJ was in the pay of the local authority and thus was “the local authority’s expert”. For good measure, he asserts that the system is “evil” and that “there does seem to be little concern in the legal profession about the reliability of opinion offered in court.”. The clear implication behind the “witch findings” items on the website set out at paragraph 95 above is that “experts” like HJ are in it for the money; that they are happy to “manufacture ‘evidence’”; and that they are in receipt of “phoney” letters of instruction. The result, Mr Hemming asserts is a “disaster”.
98. In my judgment, these comments are not only wrong and ill-informed; the simple fact remains that they have no foundation in the evidence presented either to the Nottingham County Court or to this court. That they are made publicly by Mr Hemming once again strikes me as an abuse of his position.[This sentence has been entirely removed with no warning or indication to the reader that Wall JL’s paragraph has actually been cut short]

This remains Mr Hemming’s position in 2015

Mr Hemming repeated again in a comment on my blog in August 2015 that the system is ‘evil’ and then opined that children are taken into care just because their parents smoke. He made no response to my challenge that this was clearly a nonsense assertion.

But it is not simply comments like that which raise concerns. Mr Hemming unfortunately does not restrict himself to comments. He takes action – and he has clear and active current links with others who, in my view, pose a significant danger to vulnerable children. [This has been edited to say simply ‘pose a risk’]

One such person is Ian Josephs. I provide a full discussion of his activities on this post, together with links to support my assertions.  [This has been entirely removed and replaced by ‘who assists mothers facing care proceedings to leave the UK]
In brief, it has now come to light that Marie Black, convicted of a number of serious child sex abuse offences in July 2015, was assisted by Ian Josephs to leave the UK rather than face probable care proceedings. [this sentence has been removed entirely]When challenged, Mr Josephs asserts that he is doing ‘nothing’ wrong, he would help ‘any’ mother facing the evil of forced adoption and he undertakes no prior risk assessment before handing out money, and undertakes no follow up once the parents leave the country. He estimates he has spent at least £30,000 and ‘assisted’ 200 families to date.

This network supporting ‘mums on the run’ is clearly supported by Mr Hemming, who writes about it on his own blog and appears on a video on Youtube with Mr Joseph. The links between Hemming, Joseph and Christopher Booker are also depressingly clear.

I have to give Mr Hemming recognition for bringing to light some important issues which were over looked. It is right, for example, to be concerned that recent cases involving children from other countries showed a widespread ignorance of our obligations under the Vienna convention. He is right to be concerned that the apparent promotion of adoption over other options for children in care, may have had a distorting impact on the practice of various professionals.

 

The impact of assertions that the system is ‘evil’

But why must he have this debate in the context that the family justice system is ‘evil’? How is this helping anyone? I am dealing with an increasing number of parent clients who are unable to engage with the system due to their massive amounts of distrust and fear which such irresponsible hyperbole promotes. It is beyond depressing and irritating to be constantly told I am a ‘legal aid loser’ with my ‘snout in the trough’. I have faced these and similar comments over many years from both Mr Hemming and Mr Josephs.

I remain concerned that positive outcomes from Mr Hemming’s campaigning were thus no more than a fortunate by-product and do not reflect his dedicated aim. That aim would appear rather to be to encourage partial and misinformed debate about the family justice system, including an appearance on national television in 2014 to tell parents to leave the country as they won’t get a fair trial.

This kind of comment coming from a serving MP – as he was at the time – can only have had massive impact on some very desperate and vulnerable people.

Desperate need for open and honest debate

We urgently need open, honest debate about what on earth is going on in child protection system. And I don’t think we will get that from Mr Hemming given his current associations and clearly expressed views about the ‘evil’ of the system – presumably that evil extending to all who work in it, including me.
But as ever, I am delighted to be proved wrong.

A parent’s view of the system – Humanity is the name of the game

We are grateful for the comments of Angelo, who has participated in some useful discussions on a variety of threads. With his permission, some of his comments are gathered together in this post so that the arguments don’t get lost.

The essence of Angelo’s objections to the current system is that the focus is on child rescue to the detriment of helping families stay together and that the UK is in danger of tipping into a disproportionate punitive response to families, in its legitimate wish to protect children. 

As Charlotte Proudman and Frances Trevana commented in 2012

Local authorities would rather punish a particular class of parents for their failures than invest in supportive long-term support packages for parents to enable them to gather the parenting skills required to care for their children. The statistical correlation between parents subject to care proceedings and poverty reflects how society punishes the most vulnerable and impoverished. Historically the state punished the poor by incarcerating them in workhouses and removing their children at birth. Little has changed today, as oppressive state power legitimises the removal of children from destitute parents by labelling them as hopeless and undeserving.

As ever, all comments welcome that contribute to the debate. 

We must not see any person as an abstraction. Instead, we must see in every person a universe with its own secrets, with its own treasures, with its own sources of anguish, and with some measure of triumph. Elie Wiesel

 

Proportionality and removal – only in cases of ‘deliberate malice’

Angelo has raised a number of concerns about the issues of proportionality and procedural safeguards in care proceedings. Is it always proportionate to remove children from parents who are violent? What should we be offering to parents by way of help and support? When do we ‘give up’ on families? And who is going to pay for all this?

The domestic violence and abusive behaviour we have discussed is dire. It is ‘UNCIVILISED’ and beyond the pale in a civilised society. Presented with such a case, any Court will feel bound to issue a protective order and rescue a child.

However,in my opinion, even if a parent IS charged and IS convicted of a criminal offence, permanent removal is over the top. Reform is preferable even if a man has to be gaoled or the family has to be supervised 24 hours a day to force it to change!

Whatever the case,reform and education must be the answer.

Forced adoption and permanent foster-care is totally unacceptable,in my eyes, except when something approaching deliberate malice can be demonstrated and there I mean in cases like that of Fred West who was torturing children.

On the other hand,as a last resort, I recognise there is often a need for temporary foster care whilst immediate problems are sorted out and the process of reform begins to take effect. I guess it might be necessary when both parents are violent or where Mum won’t go to a women’s shelter.All alternatives such as an extended family placement would have to be examined first, naturally.

Focus should be on education and support; working together to make change

There is a concern shared by many that women who are victims of violent partners and then ‘punished’ by having their children removed. Again, shouldn’t the focus be on education and support? Angelo discusses the work of the Danilo Dolci Foundation in Italy, which is based on the philosophy that change can only come with the direct participation of those involved and ‘the resources for the change are present and should be searched and evoked in the people themselves’. There are echoes here of the Finnish approach to ‘co-working’ with parents and children in the child protection system. Should we be more open to exploring this kind of model in the UK?

However, I think that the liquidation of families is not the way forward. I believe the separation of children from natural parents Is SUB-HUMAN and that the persecution of mothers who are who have previously been involved in dv is an invasion of their civil rights. I certainly do not believe they should be denied their fundamental human right to have more children and that if they do, that the helpless, innocent babes should be removed at birth. That is barbaric with a capital B! Such sanctions ( historically practiced by the ilk of Herod and Stalin) are pernicious and deadly to families. Despite that they are commonly imposed upon us by our system with the full endorsement of lawyers and the Courts and despite the Children’s Act which lays out the requirement for support and so on.

I believe the way forward lies in long-term education of families. Might I suggest you google Danilo Dolici Foundation and learn how similar social problems have been tackled in Sicily. I think you will find it enlightening if you have the time. Italy is not a third-world country either, it is a civilised country and Sicilian families were infected by all the symptoms of poverty brought about by organised crime and materialism as many of ours are.

Cases seen through a lens of suspicion

Angelo is clear that the consequences of NOT working with parents are dire; the ‘child rescue’ narrative comes to the fore and everything parents do is seen through a lens of suspicion and with a view to gathering evidence to support the case a social worker has already made. This issue is further explored by Lucy Reed writing in the New Statesman ‘In child protection cases, healthy scepticism too often turns to dangerous distrust’.

Social workers are full of theories (true or false) and they storm in to the lives of families with all sorts of irrational fears based on whatever they have learnt at college and after passing their college examinations usually by taking pot-luck when answering multi-choice questions. They are badly trained, badly managed, badly organised, overworked, mixed-up individuals and when told to go and investigate a referral, find the facts and make an open-minded, impartial report, they don’t know what impartial means.
Because of it, cases enter cloud-cuckoo land, as I call it, right from the outset. Perhaps a child arrives at school with a miniscule bruise which neither parent or child can explain .
So, the irrational fear is that because it is unexplained Dad might be a childbeater or and wifebeater. They ask the child does your Dad smack you ever? If the answer is yes then they will report that the miniscule bruise may have been caused by Dad. If the answer is no,they will report that a possibility exists that the child lives in a state of fear and will not implicate Dad. It’s called ‘OBTAINING BEST EVIDENCE’.
They’ll ask Mum. “Do You ever argue?” She will say all parents argue and they will ask “does he ever raise his voice?” She will say sometimes perhaps and then they will say. “Has he ever hit you?” If she says a definite no then they have (irrational) fears that she may (just may) be a woman who is cowed and afraid to speak out.
They simply do not listen to parents and cannot distinguish between fact and fiction!
When they raise the subject with Dad and he denies it then they will say that theoretically controlling men are very good at concealing their wrongdoings and turning the issues around!
I am not prejudiced against social workers, I’ve heard it on tape.
The fact-finding missions of simple concerns are turned into madcap INQUISITIONS where facts no longer matter. Later, when parents present the true facts, the lawyers turn round and say mum and dad are in dreamland with the fairies!

Humanity is the name of the game

Angelo is concerned that the drive to ‘rescue children’ has lead to proper procedures being overlooked or even flouted and the court process is not giving either children or parents the protection they need. He is not alone in this view; I assume the President of the Family Division would concur given his criticism of the ‘sloppy’ practices in many care cases. Do we need to have more of a focus on reminding each other of our essential humanity?

Every one is a human being and will have human foibles and and all are sinners, some more so than others. Human beings have children and problems will continue until the world comes to an end. Unfortunately, the world will never come to an end. The CS and the LA’s are exceeding any authority they have by playing GOD in cases (even though the majority are atheists). They are interfering in the lives of other human beings disproportionately thus abusing CHILDREN’s human rights as well as those of the wider family.

Why are they abusing the children’s human rights? Because they are contravening the statute (guidelines and frameworks) and conducting cases wrongly (illicitly). Whatever their motives are, it matters little to the victims who are being abused !

The LAW is put in place to protect them and their civil rights but the Court process does not afford them the protection they are entitled to. That is EITHER the fault of the lawyers OR that of the Court executive and protocol. Every family deserves a fair and impartial hearing in accordance with the Law. They aren’t getting one.

Some cases are appealed and judgments are overturned on those grounds. An appeal is the only remedy when cases are conducted illicitly. It’s no use campaigning for change, one must APPEAL under the existing law to rescue one’s children within time-scales relevant to their welfare. They will be grown-up by the time changes are made and even if they changes happened by miracle tomorrow, one’s children would still not be returned home to you without an appeal.

Given the seriousness of the sanctions which family courts dish out then I think wronged families and ALSO guilty families should have an automatic right to a legally funded appeal and their should be no time-limit for appeal.

An open letter to Ian Josephs

Is there anyway we can bridge this gulf between us? Or are we simply doomed to shout at each other from our opposite sides of the gulf, whilst the parents and children continue to slide into it?

This post is sparked by comments on a recent post Helping Parents Leave the Jurisdiction where I set out my concerns about the activities of John Hemming, Christopher Booker and Ian Josephs.

Sarah Phillimore

 

From Ian Josephs

On 5th August 2015 at 1.51pm

Mother on the run
Katie Lee Jones, 24 year old British mother and her children captured in West Cork.
https://youtu.be/nI6GJtMdqEo
I got sent this video today and it speaks for itself !
Sarah, the mother you describe who beats and starves her children has indeed committed a crime and probably the children should be removed.

Screaming and shouting on the other hand can be a way of life in some countries like Italy but in any case the children can still love their parents and suffer far more by adoption and separation from everyone they know than by staying where they are.

Many cases that come my way concern women who have found new non violent non shouting partners because of the risk that history might repeat itself and forced adoption in those cases is indeed a crime.

Lastly I have never once been reproached by a parent for giving bad advice, but I do have many letters of thanks from parents who folowed my” infamous” golden rules and got their kids back. Quite a few are on my site.

I do not believe in punishment without crime and before you say taking babies is not punishing anybody just tell that to non criminal mothers who have had their babies snatched at birth to be given to complete strangers for life. Strangers who can never love like a real mother; but then love is a dirty word rarely used in social service circles where they prefer to talk of new adoptive parents “bonding” with other peoples children; bonding is what the players do in football teams like Arsenal and Chelsea but they rarely “love” each other !

 

From Sam

Sam August 6, 2015 at 9:27 pm
I speak as a parent who has suffered from domestic violence. The man who abused me saw his mother abused, in fact she readily admitted to being thrown down the stairs, a number of times and having all her teeth knocked out. Her own mother was an alcoholic. My ex’s father was a drinker, I cannot say he was an alcoholic for certain but certainly the signs are all there. The next man she lived with who beat her was also a drinker, once again I didn’t meet him so cannot say he was an alcoholic, but he had the personality and behaviour. My ex’s brother had another addiction and a similar personality.

I and of course my children lived with a shouter, though it felt more like orders and it is harmful. I tried to get away before but was greatly failed by the authorities.

With respect Mr Josephs, it is rare to get out of one dysfunctional relationship without falling back straight into another one and it goes on for generations. The way to break the circle is self awareness. It is vitally important for children, unless they are to repeat their families dysfunction for the parents to become aware and work on themselves with whatever help they can find. That may be the Freedom Programme, counselling or an voluntary sector organisation such as Al Anon Family Groups. The mother needs to get skills to stop her falling down the same hole again.Where the courts fail is insisting on the 2-3 years of therapy that doesn’t actually exist.

You said you had a racehorse. He or she would have been very carefully bred , through many generations to maximise speed and minimise the faults of their sire or dam. They would have received the best of care throughout their formative years in order to grow into their potential. Hopefully at the end of their racing career you consider their options, whether to put them out to grass or stud if applicable or have them rehabilitated as a leisure horse. If so much care and attention is paid to a horse, and I am a horse lover so would never say mere horse, should it also not be applicable to children.

I did watch the You Tube clip and I saw a vulnerable young woman, that concerned me. I was also worried when I worked alongside a young woman in a voluntary project, who had already had three children removed and had got pregnant for the forth time ,it was a relationship of a few months, the father was an alcoholic. She thought everything would be all right and would not contact a solicitor even though I urged her to.

I do understand that the system is broken, if you read my other posts I have had plenty to moan about. I also think outcomes from care are appalling . I just wish there was more middle ground, that you would swing some of your resources to working here in the UK . Perhaps you would say you are already. There are partnership projects that are working in other countries and I believe there have to be more here, complete with making Children’s Services as more accountable through recording etc.

 

From Me – will Ian Josephs use his time, energy and money to do something constructive?

Sarah Phillimore Post author August 7, 2015 at 7:40 am

A very constructive and helpful comment Sam.

You are right about the loss of the middle ground. I have been saying for years that my frustration with the activities of Hemming, Josephs et al is not simply because they are wrong in most of what they say, but that they divert the energies and attention of all of us into dealing with their wrongness, instead of focusing on what we could do to make it right.

So I will put it out there – Mr Josephs. You clearly have a lot of time, energy, commitment and most importantly money.

Would you use any of those positive attributes to help projects that might actually achieve some necessary change for the better? Would you, for example support the Transparency Project with a small monthly donation so we can continue our work in pressing for greater understanding and accountability?

Would you meet with Sam and discuss with her a project for mentoring parents or peer support? I can join you and discuss what I learned in Finland about co-working with parents and children.

Is there anyway we can bridge this gulf between us? Or are we simply doomed to shout at each other from our opposite sides of the gulf, whilst the parents and children continue to slide into it?

 

Going Off the Rails in Interesting Times

Why do so many care cases go wrong?

What are the recent cases demanding?

  • Proper evidence
  • Proper thought about the evidence
  • Collective responsibility

For consideration of the importance of good evidence and how we secure it see the post  Achieving Best Evidence In Children Act cases

 

And why is it going to cause significant problems?

HHJ Wildblood’s recent newsletter – June 2015: Pressure on the court

There will be no capacity to ‘oversit’ this year – last year 160 days were ‘oversat’ at judge level. Thus ‘we must use every day of court time to its fullest advantage’.
If we run out of sitting days the solution will be simple: we cannot list court cases and that has dramatic consequences for litigants and lawyers alike (there will not be work for them to do). We must therefore tighten up considerably and stop the drift that is occurring.

Identified problems

  • Cases drifting – 49 cases now off 26 week track
  • Too many psychologists and ISW being appointed
  • Cases are not being made ready for court by LA in pre-proceedings stage
  • Too many examples of excessive and unstructured use of section 20 accommodation
  • Failure to obtain police disclosure in accordance with the protocol
  • IRHS being listed very close to FH and not being used properly. They should be listed at week 20 and used to resolve issues
  • Solicitors are not filing noticing of acting, causing problems in court office
  • Issues re kinship care should be subject of express and full discussion at the CMH and there should be case specific directions about it

 

Examples from case law and what we can learn

H (A Child) (Analysis of Realistic Options and SGOs) [2015] EWCA Civ 406 – 22 January 2015

Facts: LA issued care proceedings concerning a 4 year old in March 2014. In October 2014 an SGO was made with regard to a member of the mother’s church who was not a relative, even though the child had been cared for by the father since March. The father was successful in challenging this. There had been failure to comply with rules and practice directions, particularly with regard to the procedural requirements for an SGO.
At paragraph 7 the Court of Appeal commented ominously:
‘In simple terms the case was not in a fit state to be heard. It is a matter of some significance that no-one realised that fact at the time’
There were two realistic placement options – supported care by the father or care by a relative stranger under and SGO. The fatal flaws in this case stemmed from as assumption created by poor case management that the SGO was a realistic option but the father was not.
Classic errors included:

  • Lack of judicial/counsel continuity
  • Failure to identify issues and realistic options
  • Failure to consider what witnesses were available for eg an expert report was carried out re father in 2011/12 – the father said his circumstances had now changed but no one gave any thought to seeking an addendum report or calling the expert to give live evidence.

The consequence was that the Judge did not undertake the necessary comparative welfare analysis and thus also failed to carry out a proper evaluation of whether the interference with Article 8 rights proposed by the making of an SGO could be justified.

 

A (A child) [2015] EWFC 11 17 February 2015

A textbook example of how not to embark upon or pursue a care case. Facts: A was born on 11th January while his mother was serving a prison sentence. An initial viability assessment of his father was negative so A went into foster care. The LA then took 8 months to issue care proceedings and were found to be too quick to believe the worst of the father and made comments on the ‘immorality’ of his conduct. It was difficult for the President to discern what had happened with the assessment process and difficult to link what was set out in the threshold with the need to prove significant harm.

The Guardian came in for particular criticism at paragraph 39 onwards due to the disconnect between her oral and her written evidence:

On 6 October 2014 CG completed her initial case analysis. It is striking for what it did not say. In her oral evidence to me, CG described herself as being “extremely concerned” by the assessments. She was, she said, and this was her own, unprompted, word, “appalled”, not merely because of the local authority’s delay in issuing the proceedings but also because of the poor quality of the assessments, both the assessment of the father and the assessment of the paternal grandmother and step- grandfather. Nothing of this is to be found, however, in her initial case analysis. …
The letter from Mr Leigh had, as we have seen, referred to the guardian being “most concerned at the social work exhibited in this case” but it focused on the issue of delay. In her oral evidence to me, CG said that she had brought her concerns about the quality of the assessments to the attention of the local authority’s representatives when the matter was back at court on 6 October 2014. No doubt she did, but what is far from clear is the extent to which, if at all, her concerns were articulated, either to the other parties or to Judge Taylor. I am driven to the unhappy conclusion that whatever may have been said was wholly inadequate to bring home, either to this very experienced family judge or to the parties, the guardian’s real views about the inadequacy of the assessments.

The President identified 3 fundamental principles. Failing to abide by these principles will have serious implications for the successful pursuit of an application in court.

  • Facts must be drawn from evidence, not suspicion or speculation
    • LA must provide proper evidence, direct whenever possible
    • LA must not confuse the distinction between asserting a fact and the evidence needed to prove it
  • Facts must be linked to the case on threshold; WHY do these facts go to prove significant harm or risk of it?
  • Society must be willing to tolerate diverse standards of parenting… it is not the provenance of the state to spare children all the consequences of defective parenting… (Hedley J re L [2007] 1 FLR 2050 para 50)

An interesting aside: Sir Mark Hedley addressed our recent conference ‘Is the Child Protection System Fit for Purpose’ and opined that whenever judges saw counsel citing this famous dictum ‘it was because they knew they were going to lose’ – I am not so sure he is right about this with the President’s continued endorsement.

Re J [2015] EWCA Civ 222 19th February 2015.

Facts: two young parents who behaved in an irresponsible manner. There were issues of drug use and domestic violence. The mother had been sexually abused as a child in care. The Court of Appeal were clear this was NOT a finely balanced appeal as it was simply ‘impossible’ to detect in the judgment the Judge’s process of analysis.
Aikens JL identified the fundamental principles at para 56 – the Court of Appeal agreed with the President’s judgment in Re A, but stressed that none of these principles are new.

  • In an adoption case, it is for the local authority to prove, on a balance of probabilities, the facts on which it relies and if adoption is to be ordered, to demonstrate that “nothing else will do”, when having regard to the overriding requirements of the child’s welfare.
  • If the local authority’s case on a factual issue is challenged, the local authority must adduce proper evidence to establish the fact it seeks to prove. If a local authority asserts that a parent “does not admit, recognise or acknowledge” that a matter of concern to the authority is the case, then if that matter of concern is put in issue, it is for the local authority to prove it is the case and, furthermore, that the matter of concern “has the significance attributed to it by the local authority”.
  • Hearsay evidence about issues that appear in reports produced on behalf of the local authority, although admissible, has strict limitations if a parent challenges that hearsay evidence by giving contrary oral evidence at a hearing. If the local authority is unwilling or unable to produce a witness who can speak to the relevant matter by first hand evidence, it may find itself in “great, or indeed insuperable” difficulties in proving the fact or matter alleged by the local authority but which is challenged.
  • The formulation of “Threshold” issues and proposed findings of fact must be done with the utmost care and precision. The distinction between a fact and evidence alleged to prove a fact is fundamental and must be recognised. The document must identify the relevant facts which are sought to be proved. It can be cross-referenced to evidence relied on to prove the facts asserted but should not contain mere allegations (“he appears to have lied” etc.)
    It is for the local authority to prove that there is the necessary link between the facts upon which it relies and its case on Threshold. The local authority must demonstrate why certain facts, if proved, “justify the conclusion that the child has suffered or is at the risk of suffering significant harm” of the type asserted by the local authority.”The local authority’s evidence and submissions must set out the arguments and explain explicitly why it is said that, in the particular case, the conclusion [that the child has suffered or is at the risk of suffering significant harm] indeed follows from the facts [proved]”.
  • It is vital that local authorities, and, even more importantly, judges, bear in mind that nearly all parents will be imperfect in some way or other. The State will not take away the children of “those who commit crimes, abuse alcohol or drugs or suffer from physical or mental illness or disability, or who espouse antisocial, political or religious beliefs”simply because those facts are established. It must be demonstrated by the local authority, in the first place, that by reason of one or more of those facts, the child has suffered or is at risk of suffering significant harm. Even if that is demonstrated, adoption will not be ordered unless it is demonstrated by the local authority that “nothing else will do” when having regard to the overriding requirements of the child’s welfare. The court must guard against “social engineering”.
  • When a judge considers the evidence, he must take all of it into account and consider each piece of evidence in the context of all the other evidence, and, to use a metaphor, examine the canvas overall.
  • In considering a local authority’s application for a care order for adoption the judge must have regard to the “welfare checklist” in section1(3) of the Children Act 1989 and that in section 1(4) of the Adoption and Children Act 2002. The judge must also treat, as a paramount consideration, the child’s welfare “throughout his life” in accordance with section 1(2) of the 2002 Act. In dispensing with the parents’ consent, the judge must apply section 52(1)(b) as explained in Re P (Placement Orders, parental consent) [2008] EWCA Civ 535, [2008] 2 FLR 625.

 

South Glos Council v L and R 30th June 2015

Facts – two children both under 3 years old had been in section 20 accommodation since September 2014. In January 2015 the LA applied for a care order given the concerns about the parents who were both very young. Issues around neglect and chaotic lifestyles. On 30th January the Magistrates listed for a final hearing in July, so within 26 week period. HHJ Wildblood commented at para 4 of the judgment.

Plainly this was a case that should have been resolved within the 26 week period prescribed by statute. It is not a complex case. The issues were clearly defined. The Local Authority had been involved with the parents for years before the case started and so knew them well; the father and mother were involved with children’s services as children; there was a heightened involvement between the Local Authority and the mother following the birth of the first child. Thus, the authority had plenty of time to make up its mind about what orders it would seek once proceedings were issued.

But by the IRH at the end of June the case was clearly off the rails; the LA had no final evidence so the parents did not know the case against them and the guardian couldn’t prepare her analysis. So what went wrong?

A psychological assessment was ordered on 12th March which was not necessary. HHJ Wildblood is not sitting on the fence with his comments in para 7:

In this area far too many psychological reports are being ordered when they do not meet the test laid down in section 13(6) of The Children and Families Act 2014 that such reports should only be ordered when they are ‘necessary to assist the court to resolve the proceedings justly’. Unnecessary reports waste public money, cause delay and add nothing to the overall quality of the evidence in a case. The report, which I have read, contains little of value that could not have been found elsewhere within the evidence, if the evidence had been properly prepared;

What this case needed was proper parenting assessment of both parents. But these assessments were not done in advance of the IRH at the end of June – because the agency SW responsible had left the LA and not done this work. So by the time of the IRH the LA did not have their final evidence so neither parents nor Guardian could respond. HHJ Wildblood called for an explanation at the highest level of Director and he found the full and frank response helpful. The Director wrote (See para 13):

This situation has largely come about because of significant staffing issues within South Gloucestershire Council’s social care service. The North locality team has been affected particularly badly by high levels of staff turnover at both practitioner and management levels, which in turn has led to the use of relatively high levels of agency staff. It is evident that this situation has impacted on this case with a lack of consistency and direction, as well as a loss of knowledge and oversight each time a social worker or manager has left the Department. The Local authority’s legal team has equally been through a period of significant turnover and change recently, which has again led to inconsistency in relation to legal oversight and direction’.

HHJ Wildblood was sympathetic but obviously such sympathy is not infinite. He set out a list of considerations for future cases which may be going off the rails.

  • If a case is going off track it is imperative that the issue is brought to the attention of the court as soon as this occurs. It may then be possible to retrieve the position. Once the problem has occurred, as it has here, it is too late.
  • Cases do not involve just one professional. They involve a large array of people and it must be a collective responsibility on all to bring a case to the attention of the court once it is going off track in this way.
  • Where one party to a multi party case fails it brings down the others and also affects the efficient running of the court.
  • If a social worker is not performing as she should there are management and legal teams within a Local Authority that should pick up on what is happening.

 

Collective Responsibility?

It will be interesting to see how this concept develops – particularly when many of the problems in these cases (particularly pressure on LA staffing levels) are outside the sphere of influence of any of the participants to the care proceedings.

Child Protection: the Law before the Children Act 1989

The Good Old Days?

This is a post by Kate Wells, a retired social worker, who examines the law about Child Protection which predates the Children Act 1989.

CHILDREN ACT 1948

DUTY OF LOCAL AUTHORITIES TO ASSUME CARE OF CHILDREN.

Duty of local authority to provide for orphans, deserted children, etc.

1.-(1) Where it appears to a local authority with respect to a child in their area appearing to them to be under the age of seventeen –

(a) that he has neither parent nor guardian or has been and remains abandoned by his parents or guardian or is lost; or

(b) that his parents or guardian are, for the time being or permanently prevented by reason of   mental or bodily disease or infirmity or other incapacity or any other circumstances from providing for his accommodation, maintenance and upbringing; and

(c) in either case, that the intervention of the local authority under this section is necessary in the interests of the welfare of the child,

it shall be the duty of the local authority to receive the child into their care under this section.

(2) Where a local authority have received a child into their care under this section, it shall, subject to the provisions of this Part of this Act, be their duty to keep the child in their care so long as the welfare of the child appears to them to require it and the child has not attained the age of eighteen.

(3) Nothing in this section shall authorise a local authority to keep a child in their care under this section if any parent or guardian desires to take over the care of the child, and the local authority shall, in all cases where it appears to them consistent with the welfare of the child so to do, endeavour to secure that the care of the child is taken over either –

(a) by a parent or guardian of his, or

(b) by a relative or friend of his, being, where possible, a person of the same religious persuasion as the child or who gives an undertaking that the child will be brought up in that religious persuasion.

(4) Where a local authority receive a child into their care under this section who is then ordinarily resident in the area of another local authority, –

(a) that other local authority may at any time not later than three months after the determination (whether by agreement between the authorities or in accordance with the following provisions of this subsection) of the ordinary residence of the child, or with the concurrence of the first-mentioned authority at any subsequent time, take over the care of the child; and

(b) the first-mentioned authority may recover from the other authority any expenses duly incurred by them under Part II of this Act in respect of him (including any expenses so incurred after he has ceased to be a child and, if the other authority take over the care of him, including also any travelling or other expenses incurred in connection with the taking over).

Any question arising under this subsection as to the ordinary residence of a child shall be determined by the Secretary of State.

(5) In determining for the purposes of the last foregoing subsection the ordinary residence of any child, any period during which he resided in any place as an inmate of a school or other institution, or in accordance with the requirements of a supervision order or probation order or the conditions of a recognisance, or while boarded out under this Act,

I assume “received into care” equates to voluntary care, or as in present day legislative speak “looked after under S20 of CA1989”

 

ASSUMPTION BY LOCAL AUTHORITY OF PARENTAL RIGHTS

2.-(1) Subject to the provisions of this Part of this Act, a local authority may resolve with respect to any child in their care under the foregoing section in whose case it appears to them –

(a) that his parents are dead and that he has no guardian; or

(b) that a parent or guardian of his (hereinafter referred to as the person on whose account the resolution was passed) has abandoned him or suffers from some permanent disability rendering the said person incapable of caring for the child, or is of such habits or mode of life as to be unfit to have the care of the child –that all the rights and powers which the deceased parents would have if they were still living, or, as the case may be, all the rights and powers of the person on whose account the resolution was passed, shall vest in the local authority.

I wonder how they defined “permanent disability” and more pertinently “such habits and mode of life………” I recall reading in files that children were subject to a S.2 Resolution and this was dealt with and “resolved” by the Social Services Committee or their equivalent and am told by my friend, who was my manager for many years and started work in the newly formed Children’s Dept in 1948 and rose to become Director of SS in the shire county in which we worked (now aged 80 years)  that it was in fact largely a “rubber stamping job” – he recalls in his experience the committee never questioned anything and of course the social worker wasn’t present; the Resolution was made on the strength of a written report.  

He is unable to recall exactly what constituted “such habits or mode of life” – but clearly given the date it was tied in with the National Health Service Act in July 1948  and agreed with my suggestion that it would be related to homes that were less than hygienic – described as “dirty and foul smelling” children “unsuitably clothed” “inadequate nutrition” “drunkenness in either or both parents” “father without work”(suppose this had to be seen in the context of welfare rights – of which there were none! So a father without work would mean a family without food, heating etc. (Not so different from today!)

I assume “permanent disability” would refer to physical disabilities (and they would have been referred to as “cripples” and people with mental illness would have been referred to as “feeble minded” and even “idiots” (I’ve seen these terms used in numerous old files)and would have been incarcerated in an asylum, so would be unable to care for the children.  Again we are going back 75 years and I don’t think drugs to treat mental illness were commonly used until the late 1950s.  I know that the first anti-depressants became available on prescription from 1958.

(2) In the case of a resolution passed by paragraph (b) of the last foregoing subsection, unless the person on whose account the resolution was passed has consented in writing to the passing of the resolution, the local authority, if the whereabouts of the said person are known to them, shall forthwith after the passing of the resolution serve on him notice in writing of the passing thereof; and if, not later than one month after such a notice is served on him, the person on whose account the resolution was passed serves a notice in writing on the local authority objecting to the resolution, the resolution shall, subject to the provisions of subsection (3) of this section, lapse on the expiration of fourteen days from the service of the notice of objection.

Interesting that the parents only had one month to object to the Resolution… my friend recalls that in his recollection, very few parents actually did raise any objection.  There was a more subservient attitude to authority in those times I think. Obviously the assumption of parental rights on S.2 of the Act follows on from a child being received into care under S.1 of the Act.  I don’t know if they could use S.2 Resolution to remove a child from parents without recourse to the Juvenile Court.

Every notice served by a local authority under this subsection shall inform the person on whom the notice is served of his right to object to the resolution and of the effect of any objection made by him.

(3) Where a notice has been served on a local authority under subsection (2) of this section, the authority may not later than fourteen days from the receipt by them of the notice complain to a juvenile court, or in Scotland the sheriff, having jurisdiction in the area of the authority, and in that event the resolution shall not lapse by reason of the service of the notice until the determination of the complaint, and the court or sheriff may, on the hearing of the complaint, order that the resolution shall not lapse by reason of the service of the notice:

Provided that the court or sheriff shall not so order unless satisfied that the child had been, and at the time when the resolution was passed remained, abandoned by the person who made the objection or that that person is unfit to have the care of the child by reason of unsoundness of mind or mental deficiency or by reason of his habits or mode of life.

Ah here we have “unsoundness of mind or mental deficiency” and again the “habits and mode of life” which I think would be open to wide interpretation.

(4) Any notice under this section may be served by post, so however that a notice served by a local authority under subsection (2) of this section shall not be duly served by post unless it is sent in a registered letter.

EFFECT OF AN ASSUMPTION OF PARENTAL RIGHTS BY RESOLUTION.

3.-(1) While a resolution passed by virtue of paragraph (a) of subsection (1) of section two of this Act is in force with respect to a child, all rights and powers which the deceased parents would have if they were still living shall, in respect of the child, be vested in the local authority in accordance with the resolution.

(2) While a resolution passed by virtue of paragraph (b) the said subsection (1) is in force with respect to a child, all rights and powers of the person on whose account the resolution was passed shall, in respect of the child, be vested in the local authority in accordance with the resolution, and subsection (3) of section one of this Act shall not in respect of the child apply in relation to the person on whose account the resolution was passed.

(3) A resolution under section two of this Act shall not prevent the local authority from allowing, either for a fixed period or until the local authority otherwise determine, the care of the child to be taken over by, and the child to be under the control of, a parent, guardian, relative or friend in any case where it appears to the authority to be for the benefit of the child. I do recall the phrase “home on trial” but this might be used much later.

(4) Where a resolution under section two of this Act is in force in respect of a child and the child has ceased to be in the care of the local authority by whom the resolution was passed, then (without prejudice to the provisions of section one of this Act if those provisions apply) the local authority by whom the resolution was passed shall have power to receive the child back into their care in any circumstances in which it appears to them that their intervention under this subsection is necessary in the interests of the welfare of the child.

(5) Where a local authority receive a child into their care under the last foregoing subsection, the provisions of this Act, except subsections (4) and (5) of section one thereof, shall apply as if the child had been received into their care under the said section one.

(6) A resolution under the said section two shall not relieve any person from any liability to maintain, or contribute to the maintenance of, the child.

(7) A resolution under the said section two shall not authorise a local authority to cause a child to be brought up in any religious creed other than that in which he would have been brought up but for the resolution.

(8) Any person who knowingly –

(a) assists or induces or persistently attempts to induce a child to whom this subsection applies to run away, or

(b) harbours or conceals a child to whom this subsection applies who has run away, or prevents him from returning to the place from which he has run away,

shall on summary conviction be liable to a fine not exceeding twenty pounds or to imprisonment for a term not exceeding two months, or to both such fine and such imprisonment.

This subsection applies to any child in the care of a local authority under section one of this Act in whose case a resolution is in force under section two thereof, being a child for whom accommodation (whether in a home or otherwise) is being provided by the local authority in pursuance of Part II of this Act, and references in this subsection to running away shall be construed as references to running away from a place where accommodation is or was being so provided.

 

CHILDREN AND YOUNG PERSONS ACT 1969

This was the Act that was in force when I began my social work career in 1980 and I recall that it was not difficult to obtain a Care Order.  Cases were heard in the Magistrate’s Court and evidence had to be provided of course, but there was usually just the social work report and the Paediatrician’s report and occasionally the LA Medical Advisor would need to submit a report.  The LA lawyer was consulted as to whether the case would “stand up in court” and I can’t recall any particular problems in this respect.  Witnesses were cross-examined by the lawyer for the birthparents, but it was usually a local lawyer who defended the juveniles in criminal cases in the Juvenile Court and he wasn’t much good at cross-examination! 

The other thing I recall was that if granny or Auntie Betty asked if they could care for the children, there was absolutely no duty to assess them, or even tell the court that they had requested to care for the children.  I don’t remember this happening a great deal but if it did happen, we just had a brief discussion with them, and I am certain that I always said “thank you but no thank you” and that was end of matter!

We did need to obtain a Place of Safety Order to remove a child of course and we would go to the home of the Magistrate who was on duty and after a very brief discussion (usually in their hallway!) they would issue the Order, which I  think lasted for 28 days.

 

CARE AND OTHER TREATMENT OF JUVENILES THROUGH COURT PROCEEDINGS

Care of children and young persons through juvenile courts

1.-(1) Any local authority, constable or authorised person Care who reasonably believes that there are grounds for making an proceedings order under this section in respect of a child or young person may, subject to section 2(3) and (8) of this Act, bring him before a juvenile court.

(2) If the court before which a child or young person is brought under this section is of opinion that any of the following conditions is satisfied with respect to him, that is to say-

(a) his proper development is being avoidably prevented or neglected or his health is being avoidably impaired or neglected or he is being ill-treated ; or In some ways I think this wording is better than “significant harm” as it is more descriptive.

(b) it is probable that the condition set out in the preceding paragraph will be satisfied in his case, having regard to the fact that the court or another court has found that that condition is or was satisfied in the case of another child or young person who is or was a member of the household to which he belongs ; or  and the concept of “likely harm” embedded in the Act.

(c) he is exposed to moral danger ; or I have absolutely no idea how moral danger was interpreted.  Sexual abuse did not really “rear its head” until the early/mid 1980’s as I recall, so maybe it was if mother was a prostitute (as she would have been called then) or had a series of boyfriends in the family home, and the children were witnessing sexual acts.  There were certainly no sexually explicit videos to be seen!

(d) he is beyond the control of his parent or guardian ; or Again this is open to interpretation isn’t it – I do remember something called an “Unruly Certificate” but can’t recall how it was used.

(e) he is of compulsory school age within the meaning of 1944 c. 31. the Education Act 1944 and is not receiving efficient full-time education suitable to his age, ability and aptitude ; or This was a big problem “non-school attendance” and the evidence was provided by the Education Welfare Officer who trundled around diligently trying to get kids to school.  Social workers were also involved in this endeavour – usually without success.  Care Orders were granted very readily and children usually placed in a residential Children’s Home (often miles away from their home) which necessitated a change of school and teenagers in this position refused to go to the new school, or went in and then hopped off, so the whole thing was totally meaningless.  I worked in a Children’s Home for a short time and the school was right next door and the kids used to go to school at 9 and by 9.30 most of them would be back and we could see them climbing out of the school windows!  This was in a particularly rough area and the kids were tough too, and difficult to control, but it was permissible in those days to hit kids and this used to happen on a regular basis.

(f) he is guilty of an offence, excluding homicide, and also that he is in need of care or control which he is unlikely to receive unless the court makes an order under this section in respect of him, then, subject to the following provisions of this section and sections 2 and 3 of this Act, the court may if it thinks fit make such an order. In practice this meant it was always young males who were committing offences of theft, receiving stolen goods, criminal damage and Take Without Consent etc.  If he was out of school too and parents unable to affect any change, then a Care Order would be made.  These boys (aged around 13 – 17) were placed in residential accommodation. I think they were known as Community Home with Education (on the premises)  The one we used, St Gilberts in Worcestershire is currently in the news as allegations of historic sexual abuse have been made against the Christian Brothers who ran the school long before my time.  I think the perpetrators are all now deceased.  In my day it had an all male staff, some of a “macho” type but I don’t think there was any sexual abuse.  The boys were allowed home at weekends and parents were invited to Sports days and the like.  The building still exists to this day though not in use for any purpose.

(3) The order which a court may make under this section in respect of a child or young person is-

(a) an order requiring his parent or guardian to enter into a recognisance to take proper care of him and exercise proper control over him ; or

(b) a supervision order ; or

(c) a care order (other than an interim order) ; or

(d) a hospital order within the meaning of Part V of the 1959 c. 72. Mental Health Act 1959 ; or

(e) a guardianship order within the meaning of that Act.

(4) In any proceedings under this section the court may make orders in pursuance of paragraphs (c) and (d) of the preceding subsection but subject to that shall not make more than one of the orders mentioned in the preceding subsection, without prejudice to any power to make a further order in subsequent proceedings of any description ; and if in proceedings under this section the court makes one of those orders and an order so mentioned is already in force in respect of the child or young person in question, the court may discharge the earlier order unless it is a hospital or guardianship order.

Disputes between parents about seeing their children

This post looks at the law in cases following the parents separation, when the parents can’t agree about how the children should spend time with each of them. In cases where there is no evidence that contact with a non-resident parent would harm a child yet the resident parent claims contact would not be in the child’s best interests, can courts force parents out of their entrenched positions?

Sarah Phillimore, barrister at St John’s Chambers, looks at the issue and offers some practical advice.

This article was first published by Lexis on 19th May 2015 and has since been edited –  you can get more articles like this from Lexis at this web address www.lexisnexis.com/uk/lexisps

To what extent can or will the courts intervene to force parties out of entrenched positions?

Most experienced Family Court judges would acknowledge that there is a category of private law Children Act disputes which present profoundly difficult challenges to the court and which frequently cause judges near despair as they endeavour to achieve a positive and enduring outcome for the child. Descriptive language is used to highlight the complexity of these cases – for example, implacable hostility, intractable dispute, high conflict dispute.  In some of these cases the judge’s sense of despair at having failed to achieve a positive outcome for the child is palpable. In Re D (Intractable Contact Dispute: Publicity) [2004] EWHC 727 (Fam) Munby J memorably began his judgment by saying: ‘On 11 November 2003 a wholly deserving father left my court in tears having been driven to abandon his battle for contact with his seven year old daughter D.’

HHJ Bellamy 2018

Statute Law

The relevant statutory framework is found at section 1(1) and 1(3) of the Children Act 1989 (CA 1989). The child’s welfare is the paramount consideration and the court must have regard to the welfare checklist.

Section 8 allows the court to make what used to be called ‘contact’ and ‘residence’ orders but which are now ‘child arrangements orders’ following the Children and Families Act 2014 (CFA 2014).

The CFA 2014 also amended section 1 of the CA 1989 to include that when a court is considering a section 8 order, it must presume, unless the contrary can be shown, that the involvement of a parent in the life of a child will further the child’s welfare. ‘Involvement’ quite explicitly is not linked to any particular division of a child’s time. This amendment is thus very far from what father’s rights campaigners wanted; there is no presumption that children must spend their time 50/50 with each parent. It is difficult to see what practical change is provided by this amendment, as it offers a rebuttable presumption that is a reflection of existing law and practice.

General principles from case law.

The following cases provide general principles:

Each case is unique on its own facts and requires careful scrutiny. However, there are general principles which are usually applicable to every case:

  • the court is concerned with the interests of the mother and the father only in so far as they bear on the welfare of the child.
  • It is almost always in the interests of a child whose parents are separated that he or she should have contact with the parent with whom the child is not living. Contact should thus be terminated only in exceptional circumstances.
  • The court has power to enforce orders for contact, which it should not hesitate to exercise where it judges that it will overall promote the welfare of the child to do so.
  • The state has positive obligations to protect the Article 8 rights of parents and children. Thus, the judge must grapple with all the available alternatives before abandoning hope of achieving some contact. He must be careful not to come to a premature decision, for contact is to be stopped only as a last resort and only once it has become clear that the child will not benefit from continuing the attempt.
  • There are rare cases where the court decides that there cannot be immediate direct contact because that would injure the child’s welfare, see Re D (A Minor) (Contact) [1993] 1 FCR 964 at pp 971G–972A per Waite, LJ.
  • If there cannot be immediate direct contact there should be indirect contact so that the child grows up knowing of the love and interest of the absent parent with whom, in due course, direct contact should be established
  • It is an important part of the obligations of being a parent that the parents take responsibility for making contact work – see paras 72 onwards of Re W [2012].

EDIT 9th April 2019 – for a thorough review of relevant practice and principle see the Court Of Appeal decision in G (Children: Intractable Dispute) [2019] EWCA Civ 548

Potential problems with the courts’ approach.

The courts have unrealistic expectations about how parents will respond to pleas to act responsibly.

A horribly clear example of where the courts’ pleas fell on deaf ears is found in the D (A child – parental alienation) (Rev 1) [2018] EWFC B64 (19 October 2018) which is discussed below.

In Re H-B (Contact) [2015] EWCA Civ 389, the court heard that direct contact with the father and his two daughters had stopped in 2008. There was an incident in which the father’s new wife had been angry with the older girl and grabbed her, causing a superficial injury. The father appealed against the refusal of his application for direct contact. Both parents were found to have behaved poorly.

The President of the Family Division considered the obligations upon parents when a child refuses contact with the other parent.  See paragraph 75:

the responsibility of being a parent can be tough, it may be ‘a very big ask’. But that is what parenting is all about. There are many things which they ought to do that children may not want to do or even refuse to do: going to the dentist, going to visit some ‘boring’ elderly relative, going to school, doing homework or sitting an examination, the list is endless. The parent’s job, exercising all their parental skills, techniques and stratagems – which may include use of both the carrot and the stick and, in the case of the older child, reason and argument –, is to get the child to do what it does not want to do. That the child’s refusal cannot as such be a justification for parental failure is clear: after all, children whose education or health is prejudiced by parental shortcomings may be taken away from their parents and put into public care.

  1. I appreciate that parenting headstrong or strong-willed teenagers can be particularly taxing, sometimes very tough and exceptionally demanding. And in relation to the parenting of teenagers no judge can safely overlook the teaching of Gillick v West Norfolk and Wisbech Area Health Authority and anor [1986] AC 112, in particular the speeches of Lord Fraser of Tullybelton and Lord Scarman. But parental responsibility does not shrivel away, merely because the child is 14 or even 16, nor does the parental obligation to take all reasonable steps to ensure that a child of that age does what it ought to be doing, and does not do what it ought not to be doing. I accept (see Cambra v Jones [2014] EWHC 2264 (Fam), paras 20, 25) that a parent should not resort to brute force in exercising parental responsibility in relation to a fractious teenager.  But what one can reasonably demand – not merely as a matter of law but also and much more fundamentally as a matter of natural parental obligation – is that the parent, by argument, persuasion, cajolement, blandishments, inducements, sanctions (for example, ‘grounding’ or the confiscation of mobile phones, computers or other electronic equipment) or threats falling short of brute force, or by a combination of them, does their level best to ensure compliance. That is what one would expect of a parent whose rebellious teenage child is foolishly refusing to do GCSEs or A-Levels or ‘dropping out’ into a life of drug-fuelled crime. Why should we expect any less of a parent whose rebellious teenage child is refusing to see her father?’ 

The ‘tough’ approach of the court cannot however be a a solution to the problem of intractable contact disputes, because it does not adequately or even at all address the following circumstances:

  • The increasing autonomy of the older child.
  • The resident parent who simply will not or can not support a relationship with the other parent.

The older child

For older children, the suggestions by the sir James Munby that it is a straightforward matter of simply exercising a bit of parental muscle to bribe or compel a child, does not reflect the reality of the child’s growing autonomy. Various cases demonstrate that it is likely that the child will simply refuse to do what is expected and may even react in quite extreme ways to the expectation: see for e.g Re K (Children) [2014] EWCA Civ 1195 where the children simply ran away.

Of course, parental responsibility does not ‘shrivel away’ when dealing with a Gillick competent teenager, but as a child’s autonomy develops, the ability of a parent to impose his or her will inevitably decreases. A parent simply cannot dictate to a 15 year old as if he were 5 or even 10 years old. To do so is likely to be emotionally abusive and ineffective.

This is reflected in section 9(6) of the CA 1989; section 8 orders will only be made for children over 16 if the circumstances are ‘exceptional’.  In reality, many judges will be wary of imposing orders upon teenagers even younger than 16; recognizing that they can and do ‘vote with their feet’.

The parent with whom the child lives does not support contact

This second part of the problem is not even touched upon in re H-B; the mindset of the resident parent and the impact of this on the child. The likely reality in many cases is that the resident parent has consistently exposed the child to a very negative view of the absent parent. In terms of the impact of this on the child, it probably doesn’t matter what motivates the resident parent, be it genuine belief or something more malicious. The child will absorb the resident parent’s reality. What else can they do?

These problems are then further compounded if the child has not seen the absent parent for some time and/or was very young at the last meeting and therefore has little or no independent memory of the absent parent.

In such cases, experts consider it unlikely – even impossible – that a child living in such circumstances can start thinking positively about the absent parent. The resident parent will assert that it is simply not in the child’s best interests to have this positive view. It is not possible to force therapeutic work on an unwilling resident parent.

The parent who deliberately alienates a child

Discussion of D (A Child – parental alienation) 2018

A very interesting case about parental alienation has been published by the DFJ for Derbyshire, HHJ Bellamy. This is D (A child – parental alienation) (Rev 1) [2018] EWFC B64 (19 October 2018). This case involved the child D who was born in 2005. Proceedings had been ongoing for over ten years, albeit with a four year respite from 2012 – 2016,  and had cost a staggering amount of money for both parents – about £320,000 over ten years. A judge hearing the case in 2008 commented: ‘On the face of it this is already a dispute which is going to escalate, or has the potential to escalate and the risk is that D will be damaged by these matters.’  And sadly, that is exactly what came to pass.

There was a residence order made in the father’s favour in 2011 and the mother’s application to appeal was refused in 2012. Following a relatively peaceful four years, the mother then refused to return D to his father’s care in November 2016 and the father did not see D again until March 2017. A final hearing was listed for April 2018 after the instruction of a psychologist. We can see clearly in this chronology how such cases often end up drifting.

in early 2018 D made allegations of a serious assault upon him by the father and contact against ceased. The police became involved but took no further action and the Judge granted the father’s application in August 2018 that D give evidence at the finding of fact hearing.

D gave evidence and was very clear, saying (para 74):

I just want a normal life, living in happiness with mum. I cannot go back to my father’s. I was promised by my mum and the police officer that dad wouldn’t hurt me ever again. Now, I am here in court because he hurt me bad. Why can’t I just have a life that isn’t based on court and stress? I just want a life that I can live not live in fear from, please.’

D’s guardian put forward a schedule of six allegations that D made against his father. The court noted the evidence of the psychologist Dr Spooner at para 85.

D presented with what seemed like a pre-prepared and well-rehearsed script of all the things he wanted to tell me about his father. He took every opportunity to denigrate him, his family and his partner. Each time I attempted to ask him about issues not related to his father, such as school, hobbies and so on, he quickly derailed himself and continued on his frivolous campaign of denigration.

The court heard a great deal of evidence from social workers and other experts about the alleged injuries suffered by D. It is disturbing to note how the Judge was not assisted by some of the evidence from the local authority, not least because the social worker who prepared the section 37 report was working from the assumption that everything a child said must be true.

The father denied assaulting D but had to hold his arms when D was being aggressive towards him.  The Judge did not find any of the allegations proved; he found the father and his partner to be honest witnesses and this was a case where the mother was determined to ‘win’ at any cost. The judge found that she had deliberately alienated D from his father.

Analysis of what is meant by ‘parental alienation’

From paragraph 165 the Judge considers the issue of parental alienation. At para 169 he refers to the research Dr Julie Doughty at Cardiff University. She comments:‘

There is a paucity of empirical research into parental alienation, and what exists is dominated by a few key authors. Hence, there is no definitive definition of parental alienation within the research literature. Generally, it has been accepted that parental alienation refers to the unwarranted rejection of the alienated parent by the child, whose alliance with the alienating parent is characterised by extreme negativity towards the alienated parent due to the deliberate or unintentional actions of the alienating parent so as to adversely affect the relationship with the alienated parent. Yet, determining unwarranted rejection is problematic due to its multiple determinants, including the behaviours and characteristics of the alienating parent, alienated parent and the child. This is compounded by the child’s age and developmental stage as well as their personality traits, and the extent to which the child internalises negative consequences of triangulation. This renders establishing the prevalence and long-term effects of parental alienation difficult…’

At para 170 the Judge considers the new CAFCASS assessment framework for private law cases. The assessment contains a section headed ‘Resources for assessing child refusal/assistance’ which in turn has a link to a section headed, ‘ Typical behaviours exhibited where alienation may be a factor ’. These include:

  • The child’s opinion of a parent is unjustifiably one sided, all good or all bad, idealises on parent and devalues the other.
  • Vilification of rejected parent can amount to a campaign against them.
  • Trivial, false, weak and/or irrational reasons to justify dislike or hatred.
  • Reactions and perceptions are unjustified or disproportionate to parent’s behaviours.
  • Talks openly and without prompting about the rejected parent’s perceived shortcomings.
  • Revises history to eliminate or diminish the positive memories of the previously beneficial experiences with the rejected parent. May report events that they could not possibly remember.
  • Extends dislike/hatred to extended family or rejected parent (rejection by association).
  • No guilt or ambivalence regarding their attitudes towards the rejected parent.
  • Speech about rejected parent appears scripted, it has an artificial quality, no conviction, uses adult language, has a rehearsed quality.
  • Claims to be fearful but is aggressive, confrontational, even belligerent.

What can lawyers to either stop cases going wrong or intervene positively when they do?

Unfortunately, it is my view that the ability of lawyers or the courts to have much positive impact on the more extreme examples of intractable dispute, is very limited. This is because these are not legal problems. They arise out of the psychological vulnerabilities of one or both of the parents.  Even if parents could be persuaded to go to family therapy or family mediation it is unlikely that many could afford to do this and no state agency can be compelled to pay. The court room is clearly a very unsuitable arena to try to deal with the often toxic emotional fall out from failed adult relationships.

However, there are elements to these proceedings that the lawyer can influence and the court can attempt to dictate, which may have a positive influence on the outcome – or at the very least reduce the time taken and the emotional and financial costs incurred. See further the judgment of Hedley J in re E (A Child) [2011] EWCH 3251 at paragraph 11 onwards and A (A Child) [2013] EWCA Civ 1104.

I suggest that the fundamental requirements are:

  • Careful analysis of the issues and the available options;
  • Which feeds into a realistic timetable, avoiding drift

Intractable contact disputes that go horribly wrong usually have dragged on over many years. This increases the child and the resident’s parent aversion to the whole process; they simply want it to end. Lawyers can help by trying to identify as soon as possible which of their cases are likely to turn into intractable disputes and then being clear sighted about the options which are realistic in their case. It is essential at the earliest possible stage, all agree a clear timetable for either achieving contact or recognizing that it is not achievable whilst the child remains with the resident parent. There will then need to be full and honest appraisal of the likely success if a child is removed from the resident parent – either into foster care or to care of non- resident parent.

Proper analysis of the available options and the impact of each on the child’s welfare requires knowledge and understanding about what is in reality available to a family; little point in considering ‘specialist family mediation’ for example, if there are no providers within a reasonable distance or no one can afford to pay for it.

The following considerations may help this process:

  • Clear analysis at the earliest stage as to the degree and nature of opposition to contact. How objective and reasonable is the opposition? How flexible are the parents prepared to be? How quickly did problems escalate? Warning bells will start to ring at an early stage and should not be ignored.
  • If the non-resident parent does not accept the objections raised by the resident parent, consider an early fact finding so that there is a clear understanding of potential problems. Courts are often reluctant to go down this route (see Re E, para 11), worried that parents may simply focus on allegations against each other rather than the welfare of the child. However, this risk needs to be considered against the problems that can be caused by allegations that are never confronted and which linger on throughout the proceedings, to the detriment of any resolution;
  • If a case shows signs of being intractable, judicial continuity is very desirable;
  • Robust enforcement of any contact orders made at an early stage – don’t let this drift, bring non-compliance straight back to court. Be clear about why it hasn’t worked – did the resident parent fail to encourage? Did the non-resident parent fail to comply, for e.g. with indirect contact?;
  • The non-resident parent should be prepared to make reparation for any behaviour that has contributed to the resident parent’s distrust – not every case involves an absent parent who is wholly without reproach;
  • Making timely decisions about when a guardian or expert evidence is required. If the resident parent for example refuses to accept the outcome of a finding of fact this is usually the time when it is abundantly clear more needs to be done;
  • Exploring if there is any possibility of any help via therapeutic intervention/specialist mediation and how this is to be funded, etc
  • If it becomes clear that contact is not achievable whilst the child is living with the resident parent, there must be proper analysis of the available options and the impact on the child’s welfare of each – for example, should the court be invited to make an order under section 37 of CA 1989 for an interim care order so that the child goes into foster care?

Dr Doughty’s recommendations (cited with approval by HHJ Bellamy in para 171 of his judgment in Re D above), following a review of the case law and literature about parental alienation are:

  • Courts will not allow the implacable hostility of one parent to deter them from making a contact order where the child’s welfare otherwise requires it. In such a case contact should only be refused where the court is satisfied that there is a serious risk of harm if contact were to be ordered.
  • In some very exceptional cases, where the non-resident parent’s behaviour cannot be criticised, the effect on the child of ongoing contact proceedings is such that the court will decide those proceedings should not continue.
  • Where allegations of parental alienation are made, the court will need to record a determination of the facts, or risk an unnecessary appeal.
  • There is no blanket solution, but outcomes ae more likely to meet the child’s needs where there is:
    • Early resolution of disputed facts about domestic violence.
    • Early intervention where alienation appears to be an issue

The need to consider findings of fact seriously has been endorsed by the President of the Family Division – note J (DV Facts) [2018] EWCA Civ 115 (06 February 2018)

The views of Sir James Munby

The former President of the Family Division delivered a talk to the Annual General Meeting / Conference of NACCC, Amersham 24 November 2018, entitled ‘Dealing with Parents’ Conflict and Unreasonable Behaviour’ where he commented:

What do I have in mind?

  • First, the court must decide whether the proceedings should be allowed to continue or whether the matter should be dealt with out of court, either
    • because the parents should be required to exercise their parental responsibility and resolve matters themselves: see T v S[2013] EWHC 2521 (Fam), [2014] Fam Law 1664, and, for an elaboration, my lecture, A Matter for the Parents? A Matter for the Judge? Thoughts on 30 years of the Children Act and the revival of the inherent jurisdiction, [2019] Fam Law (forthcoming); or
    • because the parents should be diverted into some form of N-CDR, for example, mediation, arbitration or whatever.
  • Secondly, the court must decide whether or not there needs to be a fact-finding hearing and, if so, give appropriate directions for a focused fact-finding hearing at the earliest possible opportunity.
  • Thirdly, and if the case is to remain in court without an immediate fact-finding hearing, the court must decide which ‘track’ the case should follow:
    • what I will call the ‘in and out’ track, where it is realistic to imagine that the case can be resolved at the First Hearing Dispute Resolution Appointment (FHDRA); or
    • what I will call the ‘ordinary’ track, where although it is not realistic to anticipate resolution at the FHDRA there is nothing to suggest that the case is or will become intractable; or
    • what might be called the ‘special’ track for the potentially more complex cases.

Finally, and assuming that the case is to proceed in court, two things are essential:

  • First, proper assistance, before and at the hearing, for unrepresented litigants.
  • Secondly, radical reform of the process at the hearing itself.

I take these in turn.

Proper assistance, before the hearing, for unrepresented litigants raises a fundamental issue of enormous practical importance. The simple reality, I fear, is that:

  • the guidance and other explanatory literature available for litigants in person is sadly inadequate;
  • the court forms are very far from user friendly; and
  • the Family Procedure Rules 2010 and associated materials are simply not fit for purpose and, from the point of view of the litigant in person, an obstacle to proper access to justice.

Conclusion

However, in my view, the fundamental issue will always remain; these are not legal problems. These cases are almost always a manifestation of the psychological vulnerabilities of one or both of the parents.

Lawyers and the courts have poorly designed and often ineffectual tools at their disposal to make much headway. But unless and until a more effective arena is available to tackle the problem of intractable contact disputes, we will have to do our imperfect best.

Further reading

Case Law

A case where shared residence was agreed after 10 year dispute – see Re J and K (Children: Private Law) [2014] EWHC 330 (Fam)

See Re C (A Child) [2018] EWHC 557 (Fam) –  Unsuccessful appeal to the High Court by a mother against a decision which transferred the residence of C, aged six, to her father, in light of the mother’s opposition to progressing C’s contact with her father. Permission to appeal was refused as being totally without merit.

Re A (Children) (Parental alienation) [2019] EWFC  –Failed transfer of residence after an expert underestimated the strength of the children’s existing attachment to their father.

Transfer of residence of child from mother to father – RH (Parental Alienation) [2019] EWHC 2723 (Fam) (03 October 2019)

Re S (Parental Alienation: Cult) [2020] EWCA Civ 568 – child ordered to live with father if mother continued to refused to give up her adherence to a ‘harmful and sinister’ cult.

Articles and Research

See this article from the Custody Minefield about how intractable contact disputes can go wrong or get worse.

Address from the President of the Family Division to Families Need Fathers, June 2018

Review of the law and practice around ‘parental alienation’ in May 2018 from Cardiff University for Cafcass Cymru. There is a very useful summary of the relevant case law in Appendix A. The report concludes at para 4.7:

There is a paucity of empirical research into parental alienation, and what exists is dominated by a few key authors. Hence, there is no definitive definition of parental alienation within the research literature. Generally, it has been accepted that parental alienation refers to the unwarranted rejection of the non-custodial parent and an alliance with the alienatingparent characterised by the child’s extreme negativity towards thealienated parent due to the deliberate or unintentional actions of the alienating parent so as to adversely affect the relationship with the alienated parent. Yet, determining unwarranted rejection is problematic due to its multiple determinants, including the behaviours and characteristics of the alienating parent, alienated parent and the child. This is compounded by the child’s age and developmental stage as well as their personality traits, and the extent to which the child internalises negative consequences of triangulation. This renders establishing the prevalence and long-term effects of parental alienation difficult.

With no clear accepted definition or agreement on prevalence, it is not surprising that there is variability in the extent of knowledge and acceptance of parental alienation across the legal and mental health professions. The research has however, provided some general agreement in the behaviours and strategies employed in parental alienation. This has led to the emergence of several measures and tests for parental alienation, although more research is needed before reliability and validity can be assured. Many of the emerging interventions focus upon psycho-educational approaches working with children and estranged parents, but more robust evaluation is needed to determine their effectiveness.

The Cafcass Child Impact Assessment Framework (CIAF) sets out how children may experience parental separation and how this can be understood and acted on in Cafcass. The framework brings together existing guidance and tools, along with a small number of new tools, into four guides which Cafcass private lawpractitioners can use to assess different case factors, including:

  • Domestic abuse where children have been harmed directly or indirectly, for example from the impact of coercive control.
  • Conflict which is harmful to the child such as a long-running court case or mutual hostility between parents which can become intolerable for the child.
  • Child refusal or resistance to spending time with one of their parents or carers which may be due to a range of justified reasons or could be an indicator of the harm caused when a child has been alienated by one parent against the other for no good reason.
  • Other forms of harmful parenting due to factors like substance misuse or severe mental health difficulties.

Resources and Links recommended by the Alienation Experience Blog

Useful analysis of case law from UKAP.ONE

Want help to be a better parent? Don’t hold your breath.

 

What obligations does the State accept under Article 8 of the ECHR?

This is a post by Sarah Phillimore

No one has the right to expect the State to make them better parents

The high water mark of judicial denial of any ‘right’ to ask the state to pay for you to be a better parent, is found in Kent County Council v G & others [2005] UKHL 68. In this case, the House of Lords – as they then were – refused to accept that a therapeutic placement for the mother could legitimately fit within the ambit of section 38(6) of the Children Act.  In this case, the mother wanted an assessment of her response to  proposed psychotherapeutic treatment. Such an ‘assessment’ was in reality ‘treatment’ for the mother and no matter how valuable the information might be for the purposes of the eventual final decision in the care proceedings, it could not be brought within section 38(6) which focused rather upon the benefits of an assessment of the child.

However, the judgement in Kent, explicitly identifies something much more fundamental in human rights terms, than merely a wish to rescue the statutory interpretation of section 38(6). Rather, there is a clear rejection of the notion that parents have any right to seek assistance from the state to be better parents.

This is clearly set out in paragraph 24 of Lord Scott’s judgement where he grapples with that issue head on:

There is no dispute but that both Ellie and her parents have the right under article 8 of the Convention to “respect” for their “family life”. Mr Cohen QC submitted, as I understood it, that this right placed the state, and the County Council as an emanation of the state, under a positive obligation to provide for Ellie’s mother to have the benefit of the proposed therapeutic and assessment programme at the Cassel Hospital in order to provide Ellie and her family with the optimum chance of being able to live together as a family. He submitted that if section 38(6) were to be given a scope that did not extend to a direction that that programme be offered it would have deprived Ellie’s parents, and would deprive other parents in a similar position, of the chance to demonstrate that fundamental changes could be made within the necessary timescale so that it would be safe for them to parent their child. That may be so but the proposition that the refusal of the court to make that direction, or the unwillingness of the Council, or, for that matter, the NHS Trust or the legal aid authorities, to fund its implementation, would have constituted a breach of Ellie’s or the parents’ article 8 rights cannot, in my opinion, be accepted. There is no article 8 right to be made a better parent at public expense

The funding implications are stark. The family in the Kent case ended up getting their lengthy treatment funded by the LA; they benefitted enormously and ended up back in the community with no orders made and the family intact.  However, this came at a cost of more than £200,000 which caused the LA to appeal to the House of Lords after the fact,  as a matter of principle.

The Children Act 1989 does not identify on whom the cost of compliance with its directions is to fall. It can’t compel the LA to fund treatment which is outside the scope of section 38(6) of the Children Act. Medical or psychiatric treatment of a parent would ordinarily be funded by the local NHS Trust. The court has no powers in care proceedings to compel the NHS to fund anything. The Legal Services Commission confirmed in Kent that they would not fund any element of therapy or treatment.

 

What’s the cost/benefit analysis?

But who is doing the cost benefit analysis here? £200,000 for one family in one placement seems an enormous sum. But compare that to the likely costs of a family which had been left without that therapeutic intervention, who would have gone on to have more children, got involved in more care proceedings, required foster carers to be found etc, etc.

Research from the University of Bristol in 2011 said this:

Bringing care proceedings is a costly and time consuming business for local authorities. It has been estimated that each care case takes up 20 per cent of a full-time social worker’s working hours for a year (Plowden 2009). In addition, the local authority will have to contribute towards independent assessments ordered by the court and may need to instruct barristers (counsel) to represent it at court. order to remove or detain a child in an emergency (Masson et al 2007; DCSF 2008, para 3.3).

When interviewed by Commuity Care in December 2014 about the likely costs to Birmingham’s children’s social care services of dealing with the children getting less than good enough parenting, Lord Warner said:

The work undertaken suggests that the extra costs of safeguarding and looking after more children over the next three years may well cost an additional £140m over three years and reach an annual cost of nearly £50m by 2017/18.

It appears that to focus on the immediate high costs of a therapeutic placement is to lose sight of the amounts that could be saved if troubled families are diverted out of the care system.

And there is a more immediate point of concern for those care proceedings which involve lesser levels of dysfunction and human misery. What about those cases (probably most of them) where a full on residential therapeutic placement isn’t needed but so much positive could be achieved with – for example –  a short course of cognitive behavioural therapy or other counselling. But the parents inevitably can’t afford to pay, the LA inevitably won’t offer any assistance and the only outcome is to wait for NHS therapy to become available which is often many months outside the 26 week timeframe.

It seems that the stark words of the House of Lords linger still ‘there is no article 8 right to be a better parent at public expense’.

 

But what about our Article 8 obligations?

But how do we square that with our Article 8 obligations? What about Re B-S which set out clearly that the starting point must be consideration of the law around Article 8 of the European Convention and the fact that this imposes a positive obligation upon States to try to keep families together. See para 18 of the judgment:

To this we need only add what the Strasbourg court said in YC v United Kingdom (2012) 55 EHRR 967, para 134:

“family ties may only be severed in very exceptional circumstances and … everything must be done to preserve personal relations and, where appropriate, to ‘rebuild’ the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.”

How do we square that circle? What are we saying to vulnerable parents who are unable to access support with their mental health difficulties and/or drug abuse, who are thrown into the ring of deeply stressful care proceedings and expected to engage constructively with professionals picking apart every aspect of their lives?

Do they have a right to expect help or not? If the help just isn’t out there, because no one has any money to fund it, what are the Court of Appeal expecting us to do with the requirement that we must ‘rebuild’ the family where ever ‘appropriate’ ? There are charities and local initiatives trying to plug the gap but can the State realistically ever claim its obligations under Article 8 are satisfied in this way?

I don’t have any answers to those questions. But somebody rather higher up the political/legal food chain than me needs to be asking them. Otherwise care proceedings will continue to be an increasingly expensive and cruel farce.

Further reading

Louise Tickle’s article in the Guardian in April 2015 – Are we failing parents whose children are taking into care?