Other thoughts

Why I no longer support opening up the family courts

This is a post by Sarah Phillimore

Yesterday I was told that a published judgment in a family case had been the subject of an article in a tabloid newspaper. I am not going to link to either the case or the article for reasons which I hope will become very clear. But if anyone doubts the veracity of what I am saying, contact me and I will share the links with you privately.

The article was the usual tabloid fodder. No discussion of the wider issues examined by the judgment, no recognition of the work done by parents, the social workers, or the court. It read to me simply as an exercise in slut shaming. Given the level of detail about the services the parents had been offered it was apparently easy for people in their locality to know who they are. The parents, I am told and understandably – are distraught.

I had an email discussion with a journalist about this. I haven’t asked their permission to repeat their emails so I don’t. But you will get a flavour of the conversation from mine:

This is why transparency will stall as journalists are so irresponsible….

Really? You didn’t notice even a whiff of slut shaming in their approach? It is this kind of thing that will slam door shut on transparency. Journalists have to step up…

OK but the door to transparency remains firmly shut – this is why. Again the excuse that journalists only hold mirror up to society, rarely any recognition of or responsibility taken for how your profession feeds that. A great shame. The mother is distraught. That is a whole group of lawyers who won’t be supporting the next publication of a judgment and I too am wavering.

The damage done by journalists over the death of Peter Connelly is with us still. They continue to compound this damage as for example we see with the reporting of Andrew Norfolk over the ‘Muslim Foster carers’ case. Time and time again I see gleeful reporting of women who have had children removed as just some kind of shameful baby making machines. But these are real people – with real children.

It is just not good enough to say that journalists are ‘just giving the public what they want’. Journalists need to accept that they are also responsible for encouraging and feeding this – going to ever more lurid extremes in their reporting to secure readership and comment.

I have always been wary about whether or not we have the journalists we need to report on sensitive family matters. I have decided now that we do not. I remain very grateful for the efforts of Tortoise media to provide more detailed coverage of these important issues but my fear is that they will always be overshadowed and overwhelmed by the tsunami of nasty, prurient baiting that comes from the majority of the press.

I am still glad I played a small part in Louise Tickle’s victory in the Court of Appeal to challenge an unlawful Reporting Restrictions Order, and that it will lead to a greater discussion about transparency. What she revealed about the nature and extent to which lawyers either understood or applied the law was frightening – the expensive administrative labyrinth she entered into merely to make an appeal, even more so. I will continue to admire and pay tribute to the courage and tenacity she showed to do the right thing.

But should anyone care to ask for my views in the forthcoming Transparency Review then they will be as set out above. I sadly don’t think the majority of our journalists have the will or the ability to report on family matters in any other way than sensationalised click bait. And this hurts people. It doesn’t ‘shine a light’ on the system or increase public understanding. Its just the 2019 equivalent of the stocks or the ducking stool.

I will not support further opening up of the family courts. I will no longer support the pain and misery of my parent clients being offered up for public entertainment. I will no longer agree to the publication of any judgment in a case where I act, unless and until I can see some recognition from our Fourth Estate of the power they wield, and the harm they do.

What can we do to help parents understand and participate in care proceedings?

This is a post by Sarah Phillimore.

Imagine you have landed on an alien planet. The locals speak a completely different language. Their customs and culture are completely different to anything you know. There is no one available to translate for you. No one to explain. What happens?

Since starting this site in 2014 I have become more and more aware that many parents simply do not understand what is going on in care proceedings. Sadly, this group often comprises my own clients; after I have patted myself on the back about my great skills at establishing rapport and explaining things in simple terms, it becomes clear a few weeks or months later that they didn’t really understand at all. And by then it is often too late.

This was brought home to me with particular force recently. I was asked by a parent to look at the final judgment in her case and advise her if there was any way at all she could resist the making of an adoption order. With a terrible poignancy she sent me photographs of each page of the final judgment, laid out on her floor. The pages were in random order; some were missing. She clearly had no understanding at all of what had gone on.  She emailed me:

I wish I did right, from the beginning. But I guess it’s to late for me. My sw called me in today, to say they found a family for E, breaks my heart. To even hear her say that. I just dont know what I can do. I probably, will just have to accept it, and concentrate on my two kids who’s also placed in long-term care. Thank you so so much I appreciate your time. I’m sorry if somethings i wrote didnt make sense. English is not my first language and I do struggle with this.

In the narrative of many parents, often their lawyer is entirely absent. The social worker is afforded a God like power to make all decisions.

Quite rightly as a society we endorse non-means non-merits tested legal aid for parents in care proceedings – but without some kind of bridge between parents and their lawyers, is this a benefit that we are squandering? I do not think this lack of understanding comes about because parents are stupid – but mainly because they are afraid and confused. Language barriers of course, do not help but these problems of lack of understanding are not restricted to those who do not have English as a first language.

We know advocates for parents can help – David Tobis has shown how it works in the USA. There are also pockets of good work around the country  – see what New Beginnings are doing and individuals such as Surviving Safeguarding – but the lack of nationwide standards means that there are many dangerous people and organisations who purport to ‘help and advise’ very vulnerable parents.

I asked another parent for her views about the benefits of advocacy in child protection cases and her post is below.  It is clearly not only the relationships with lawyers that parents need help with.

Advocacy in Child Protection Interventions – guest post from a parent

Imagine you have landed on an alien planet. The locals speak a completely different language. Their customs and culture are completely different to anything you know. There is no one available to translate for you. No one to explain. What happens? You find yourself stumbling along, learning only by experience, by trial and error. Even if you do happen upon someone who does speak your language, they are incredibly busy and have little time to truly sit down with you. Time goes on and you do your best to muddle along but make mistakes in the form of misinterpreting or being unable to make your communication clear. You attempt to use their customs and communication styles but because you don’t have the cypher to the code they speak in your attempts are often misinterpreted, or even ignored because they simply don’t have the time to move at your pace. Wouldn’t it be incredibly useful if there was someone to act as a bridge and help you to understand better?

I am the mother of two children. One whom I have not seen and spoken to in nearly two years, the other who lives with me for a substantial amount of each week. There was a time when all three of us lived together, unfortunately that came to an end when I experienced a crisis. I had experienced domestic abuse, the result of which left my ex-partner with a conviction. I had experienced his wrath in the subsequent months leading from his arrest and conviction in the form of family court proceedings I weathered the storm, fought nearly 12 months through court, moved areas and tried my best to continue as a single mother of a child with a disability and a toddler. I had no family support. It would be wrong of me to say that I sailed through the whole process because things like this take its toll and with the best will in the world, co-parenting with someone who holds a grudge and who has made it very clear that they believe you are an incompetent parent is no easy task.

I asked for support, for a carer’s assessment so I could have a modicum of time to myself, to regroup and recharge, unfortunately that assessment was not forthcoming and a few short months later I reached crisis point. At that point social services became heavily involved and I was shoved onto what felt very much like a conveyer belt moving at great speed the controls for which were written in a foreign language.

My children’s case has been closed to my local authority now for a little over 6 months. I however am left with many questions, the result of which has led to an ongoing complaint. I am 18 months into that complaint with no resolution in sight. In an attempt to understand and find answers I have taken to Twitter and much online reading and have come to an understanding that there are many parents out there who simply do not understand the process they have gone through, have lingering doubts they were treated fairly and want answers. I count myself as one of those parents.

There seems to be a common theme amongst those of us who talk online, and also from many professionals (social workers, adopters, foster carers, barristers) who also spend their free time sharing their views, practices and experiences within the child protections system: parents are frequently not adequately supported.

This is where good advocacy could help. A good advocate tasked solely with the job of understanding you and your ‘planet’ whilst having plenty of knowledge of the ‘planet’ you find yourself on and finding a way to help you, and the ‘locals’ navigate your way through. Time would not be wasted. Misunderstandings may not happen, and if they did they could be cleared up. All the while keeping the goal at the centre of the process: safe and happy children. This is the position parents potentially find themselves in when they enter the planet of child protection. Parents and social workers often want the same things: for the children at the centre to be safe, to thrive, to be happy. A common goal. It was certainly my goal. Unfortunately somehow, and I take responsibility in this for I am not the best communicator when afraid and feeling very much alone, it was a goal that seemed to become lost amongst much alien talk of me being ‘disengaged’, ‘mentally unwell’, ‘abusive’, ‘neglectful’, ‘unaware’, ‘robotic’, ‘alcohol dependant ’etc etc etc.

From a purely personal point of view, I struggle to assimilate and understand lots of information at once unless I can refer back to it. I asked repeatedly if I could communicate via email (except in meetings of course). These requests were largely ignored. I took to initially politely emailing LA employees with questions or clarifications of my understanding. I sent information I had gathered over the years to refute some of the claims that were being made of me. I was also aware though that social workers have huge caseloads – I was frightened of annoying them, or of coming across as ‘unhinged’ – this is a left-over of years of dv.

It was only after a I had met someone now close to me who just happened to work within the system that I realised I should have continued to keep pressing my point home, I should have continued to ask questions – by that time the damage had already been done. I did manage to assert myself enough to now have a meaningful relationship with my youngest child, but my eldest is not lost not only to me but also to their sibling. Things could have been so different. A good advocate would have spoken up, would have helped me understand, would have helped point out the poor process that was taking place (and it was poor – that is becoming more evident). Very little of what I experienced could truly be seen as ‘child centred’ – and much of that, I now firmly believe, was because there was not someone who could help me to see into the culture of the alien planet I was on and could help the ‘locals’ see me rather than the preconceived ideas they had of me based on my inability (within the child protection arena, since, whether intended or not, the treatment I received was unfortunately quite similar to the tactics of my abusers, and probably unbeknownst to the social workers involved, only served to silence me) to advocate for myself and my children.

What is the evidence base for orders about indirect contact?

This is an article by Sarah Phillimore and Families Need Fathers. It was first published in the May edition of the Family Law Journal and is reproduced here with acknowledgment and thanks

Indirect contact: on what basis do such orders promote the welfare of children?

This article examines the evidential basis supporting orders for indirect contact to provide a mechanism whereby direct contact may at some point resume. The authors are concerned that this ‘wait and see’ strategy at best achieves nothing and at worst is actively harmful. They call for better research about the impact of indirect contact in cases of entrenched opposition, and greater willingness to consider psychological intervention at earlier stages.

For the purposes of this piece, ‘indirect contact’ is defined as letters, cards, emails – usually at specified times or events.

There are many reported cases where parents (usually fathers) are refused direct contact in private law proceedings. A recent one is R (a child – appeal: termination of contact) [2019] EWHC 132 (Fam) (29 January 2019). Here the court was initially prepared to refuse direct contact, even having accepted that the child would then be parented solely by his mother:

‘… who had been identified not only as having caused emotional harm to him through her alienation of him from his father but also and as significantly whose parenting was identified as creating an enmeshed relationship where R was unable to developmentally separate, to develop his own identity separate to that of his mother.’

The appeal was allowed in essence because (para [77]):

‘… the combination of the consequences of the findings of fact that had been made and the lack of full exploration of the options available (in particular in relation to therapy for the mother) meant that the end of the road had not been reached.’

Therefore the appellate court was ready to take a stand in a case where a finding had been made that the resident parent had caused emotional harm by alienation. But what about the presumably greater number of cases where no such clear finding is made against either parent?

Where there is no clear finding against either parent

I recently represented a father in such a case on his application for permission to appeal a refusal to make an order for direct contact. The child was born in 2007.and in 2010 the court made findings against the father of behaviour that was unpleasant but not sufficiently serious to rule out direct contact, Such contact was positive until 2011 when it ceased, the child demonstrating increased anxiety until eventually claiming to have no father at all.

The father’s position was that this was nothing to do with the quality of his relationship with his son but rather that, from the outset, the mother was ‘entrenched’ ‘ in her opposition to it. NYAS and Cafcass intervened, the court suggested that the mother undergo therapy and she had some kind of counselling, but nothing shifted.

Throughout, the court adopted the ‘wait and see’ strategy, in the hope that ‘time would heal’ and the indirect contact would blossom into direct contact. In 2015 the father’s appeal was before the full Court of Appeal who shared his concern about this strategy and noted that if it continued to fail, then expert evidence ought to be considered. The father subsequently applied for a psychological assessment of the mother.

By the time that application came to court in 2016 the child could not contemplate even discussion about his father; the applications for further expert evidence was refused. The father appealed again but in 2017 that appeal was dismissed, the Court of Appeal agreeing that continuing the proceedings was not in the child’s best interests. The father continued, with his now decade long battle which finally ended in October 2018 where Mr Justice Moor refused permission to appeal against the final decision at first instance to refuse direct contact.

The client perspective

I asked my client for his views.

‘The non resident parent usually, sooner or later, comes to a point where they see their attempt at trying to maintain contact with their child as futile. This point can be reached even before contemplating making a court application when told by those familiar with the cycle of the family justice system that it is unlikely they will maintain contact where the non resident parent opposes it, sometimes it takes one year of court attendances and going to contact centres, sometimes it takes many years before a parent gives up or is forced to give up, the system is designed to make maintaining contact as difficult as possible.
… At the last contact session my Son said “see you next time” he waved as he left, I have not seen him for seven years now.
… Where it is clear the resident parent will never support the child to have a meaningful relationship with their parent it is essential that the Judges order direct contact….It should be acknowledged by the Judges that indirect contact merely supports an entrenched resident parent’s ability, either deliberately or incidentally, to also entrench the child’s views against the other parent, indirect contact makes matters worse.’

This case appeared to me a clear example of the failure of the ‘wait and see’ strategy when one parent was entrenched in opposition. I could find no research or other literature which offered any evidential basis for this as a successful strategy. I therefore I asked Families Need Fathers if they could conduct a survey of their members.

The FNF survey on indirect contact

FNF conducted a survey of 154 service users, (95% dads), who had final orders for indirect contact only.

In just one case (0.6%) was direct contact restored, seemingly, without further intervention in a situation where the indirect contact order was mostly complied with.

Three others reported direct contact resuming, but not attributable to factors beyond indirect contact. In one case a direct relationship was re-established through the intervention of an elder sibling. In another, direct contact was established following a successful appeal and in one more through a change of residence.

Almost universally (97%) respondents said that these orders were made in response to implacable hostility towards them from the parent with whom the child lived.
In most cases (58%) someone in a position of authority specifically suggested that given time things might settle down and lead to the restoration of visitation. Cafcass were the most likely to express such optimism (37%), as did a third of Judges (34%) either in the final order, in a final judgement or both.

In the vast majority of cases (92%) the orders made included a requirement for the children to be supported in responding to letters or gifts received. However, 79% of respondents said that they ‘never’ received a response, 13% did so rarely or occasionally and just 4% reported full compliance.

Many expressed doubt that their correspondence was reaching their children at all. In one case a father who always sent gifts for his daughter’s birthday and at Christmas, reported evidence that the mother was writing brief ‘thank you’ cards for receipt of gifts purporting to be from the child so as to give the appearance of compliance with court orders.

Clearly this survey is not based on a scientifically balanced sample, but these figures suggest that parties are being offered false hope in spades with virtually no prospect of a positive outcome during the children’s minorities. Not surprisingly, some respondents, in hindsight, considered that they were being fobbed-off with hope for the convenience of the Courts or Cafcass – perhaps to make the figures of duration of proceedings look better against targets or to save their money by not exhausting all possible routes to a solution. Many expressed frustration and disappointment at the lack of stronger interventions by the courts to ensure any meaningful contact.

The low level of compliance with these orders and lack of enforcement of family court orders, precisely in the more hostile situations where it is most needed, has led to infinitesimally low levels of successful outcomes. Perhaps we need to remind ourselves that these are situations where courts were satisfied that contact was not only safe, but also best served the welfare interests of the children.

Personal stories

Dozens of respondents shared their stories of personal devastation. Several had contemplated suicide and one grandparent had done so. Two spoke of suffering from Post-Traumatic Stress Disorder, others described other consequent stress on them and their families:

‘I felt – and still feel bereft. I have struggled with my mental health since then; I am on anti-depressants and sometimes cannot work because I haven’t slept in days. My wife holds me through the night when I am crying and missing my children and I wonder who holds them when they cry that they are missing me.’

Some parents agreed that indirect contact, where correspondence was received, at least informed a child that the other parent continues to love them and has not abandoned them. However, should relationships then be restored in adulthood, it does not take away from damage done. The internal ‘wiring’ of the brain is set. The relationship may be all but extinct. This suggests that indirect contact should be used only as part of or pending a plan of intervention, to restore meaningful relationships.

Family courts are there to weigh up the evidence in determining the best interests of children. Many respondents expressed the view that ‘hope’ is an inadequate basis for meeting children’s welfare needs; doing nothing may merely create the fragile illusion of calm for children. Respondents were convinced that it would be a mistake to assume that children are not being harmed whilst living in an environment that denigrates half of their family. Inevitably, the comments made to us suggested not only a deep frustration with family justice, but concern at the lack of support for children left harbouring false perspectives and unjustified hostility to once-loved parents. Respondents’ experiences also demonstrated the lack of support for themselves when court proceedings were over without a satisfactory outcome. One father, who had withdrawn his application on advice from CAFCASS after the mother promised to ‘de-escalate’ the situation, said this:

‘In the last phone call I had with my daughter, she told me that she remembered loving me once, but “luckily I have been allowed to stay away from you and now I realise only an insane person would want to see you.”’

Father who withdrew court application for direct contact on advice from Cafcass and promise of de-escalation by the mother.

Conclusion: The need for proper research

It was the view of the (now) President of the Family Division in the 2017 Bridget Lindley Memorial Lecture that judges need better information about outcomes – without information about outcomes, Judges were left trying to hit a bullseye by throwing a dart over their shoulders.

If indirect contact is to be relied upon as a mechanism to restore direct contact, then we need proper research about this. Currently data on Child Arrangements Orders does not even distinguish between orders for direct and indirect contact. There is, we suggest, a need to consider proper psychological intervention about how to break entrenched parent deadlock and more willingness to consider change of residence.

It is the view of the authors that it is clear that mere passage of time is highly unlikely to ‘heal’ entrenched opposition – rather it is likely to cement it, particularly as many fathers cannot simply sit and wait as years go by with no direct contact.

Michael Lewkowicz
Families Need Fathers
Sarah Phillimore
St Johns Chambers Bristol

Why does Everyone Hate the Family Court ? Part Four.

Heads You Lose: Tails You Lose

Sarah Phillimore writes:  I am grateful for this post from Emma Sutcliffe, part 4 in our series ‘why does everyone hate the family courts’?  Emma’s previous post on this topic can be found here.

The family justice system is very much in the public eye at the time of writing on May 15th 2019- 120 MPs have called for an inquiry into how the courts operate and The Victoria Derbyshire programme has hosted two discussions so far. It seems to be promoting the Women’s Aid line that the family courts ‘push contact with abusers at all costs’. I don’t think that is true.

But what I can’t deny is the level of fear, misery and misinformation around the family justice system and the fact that people often come out of it more brutalised than when they went in. What is the problem? How can we fix it? The only way I know how, having very little by way of political or media influence, is to continue to host these kind of discussions in the hope that somehow, some where a seed will be planted that may grow.

I don’t agree with everything that Emma says, I don’t agree the system is ‘set up against women’ . I am also concerned to see a picture painted of two parents – who presumably at one point loved each other enough to have children together – who now treat each other as bitter enemies. I don’t think the family court is responsible for that level of bad feeling, but I accept that as an arena it is the worst place to put frightened or angry people.

However, the point of this post is not to get Emma to agree with me or hound her for being ‘wrong’. The point is to identify where our perceptions differ and what shapes that. Is that divide a product of misunderstanding? Or some deeper ideological differences? Is the perception of parents’ clouded by their pain and misery? Or is my response foggy or jaded because of professional arrogance?

What should be happening here is the entirely sensible requirement when preparing for an adversarial environment, that you develop a theory of the case and you prepare your cross examination around that. A case with no strong narrative arc is messy and uncompelling. If the burden of proof is on you then a lack of focus on your theory of the case may be enough to sink you. What Emma describes here sounds to me like game playing of a much more cynical kind and verging on the unethical. Its not a tactic I ever employ or would ever advise. Once your life is being held up to microscopic examination in a court setting, then playing games should be the very last thing on your mind. 

However, this was Emma’s experience.  And, as she so powerfully says, no one should ever have to  ‘put on a performance’ to persuade a court to analyse the evidence before it and make a decision in the best interests of the child. Our courts should not be a theatre. If there is anything about the system and the people in it that encourages this – it needs to stop. 

How does a barrister prepare you to lose your children?

By roughing you over as if you’re a criminal. Family court is vilifying, humiliating and terrifying. It is worse when the narcissist you divorced is your opponent. Because the only person a narcissist loves is themselves and they’re quite prepared to lose whatever it takes in the process so that they don’t lose face. It’s called a ‘scorched earth policy’ and my barrister pummelled me in readiness of every court statement and appearance for the inevitable lies, fury and shouting that accompanies any head to head with someone who would even suggest their own children would be better in the care system than with their own mother.

The barrister who worked for me made me look straight on at the loss of my children and study assiduously both the recommendations of the court and the people who made the recommendations. ‘what’s the sound track in the court?’ He asked when we first met — some 16 hearings in by the point.

‘You are a bad parent’ he told me. Looking directly at me as he delivered a crushing home truth — “because just by even being in family court and having strangers decide how your children are going to play out their childhood you have let them down. In the eyes of the court therefore you are a bad parent”.

Am having got me to a state of despair he then sought to get me ‘judge ready’.

“This is the Anna* we need the judge to see — an exhausted, working mum who has been driven to seek to need the court’s help to deal with an utterly uncooperative parent. We need to mitigate risk to the judge — that you can accept your flaws but still do your best for the children. Let us let the baddest parent show themselves for what they are. Otherwise this just looks to the judge like two very clever people who are adept at arguing whilst their children look on. You need to accept and convey that you are contrite and remorseful that such behaviour has and would cause them emotional harm if it were to continue.”

And with that I had an epiphany.

Like it of not; family court is a game of chess. And the system is set up against women. Children are the sacrificial pawns and to win this game I had to have the agility of the Queen and read the board. The king appears to be the dominant player, but it’s the queen who can contort to whatever move is needed to protect and win the game.

And so, with that in mind I determined to adjust my mindset and moves. I could lose 50 percent of holiday time with my children for a few years until they get wise enough to reject their father’s bullying by themselves or I could dig my heels in, battle the court officers and keep portraying myself as a battling parent too determined to beat my ex than protect my children.

Thanks to that roughing over by the barrister the small lose or ultimate lose strategy was easy to shapeshift into.

Once he knew I understood the games and the rules, the barrister and my solicitor then crafted every statement and every question in every hearing thereafter to play to the soundtrack of the court — hardworking, long suffering caring mother, able to withstand every ludicrous allegation and still demonstrate cooperativity.

And as we walked into the final hearing — the narcissist did what narcissists ultimately do and lost it when he didn’t get exactly what he believed he was entitled to — adoration and dominance.

Judges do not like risk. And they do not like arrogance. They care not for how much money someone has, what car they drive, how well connected they are or if they are dressed in Armani or Primarni. They want to know that you show up, you accept help, you recognise your flaws and vulnerabilities and you put your children first. Game over. I lost the small battle.

The loss was wonderful because it was palatable. And in his summing up the judge adeptly dismissed every taunt, claim and even overuled his own biased officers. Furthermore he praised me for my courage under persistent sniper fire and concluded with words that were music — the music of the court — to my ears and to my children:

‘I cannot be confident that if residency were given to Dad that given the ludicrous allegations Mum has successfully defended Dad would not seek continued punishment of Mum using the children. Further time with dad risks psychological harm to the daughter. And without changes in the environment when a child is 12 they will start to vote with their feet and at this point it is Dad who risks losing the relationship without making changes. Given that the children are articulate, intelligent and clearly gifted, if they goose not to go to a parent’s house when they are 12 the court will not force the contact’.

The 24 months of worry that I would lose my children and my life was lifted during that 40 min judgment.

I had been judged.
My children had been heard and understood and our concerns justified.

There is no greater victory.
The loss that never ends — the loss of a meaningful loving relationships of trust, fairness, unselfishness and courage to give your children what they need — is the ultimate loss. I won the residency order. I won my children’s faith. The only loss I have is respect for their Father. That is the loss that knows no end.

Years later, however, I remain enraged about the performance I had to make to be ‘the exhausted, desperate Mum the judge needs to see’. I resent that my strengths — accuracy, challenging injustice, truthfulness and obstinance — qualities admired as ones of leadership in a man were instructed to be turned down because they are interpreted as non-compliant in a woman. We should speak up when something is not right, when undermining is taking place, when systems, people, Cafcass Officers are corrupt and corruptible. We tell our children to be brave, be bold, be yourself. Then we tell those girls who become women to stop these characteristics and accept the archetypes directed by our own Family Courts and the officials that turn the cogs.

The Cafcass Officer didn’t like my challenges. The psychologist accepted and praised my enquiring mind and described my ex for being fixed and resolute (uncooperative) whilst telling the court I held ‘the key to the resolution of the conflict — by backing down, shutting up, accepting the abuse persistently doled our through gaslighting, stonewalling and intransigence. I could flex and contort to any slight so the abuse could continue unchecked if I wanted residency of my children. Three different judges wanted or saw three different ‘Anna’s’ — one saw a frustrated mum, one only saw a mum with anxiety and hurried me out of his court, one saw why I was ‘challenging’ and that my ability withstand years of abuse and coercive control transacted through my children was attributable to my being bold, brave, myself.

The Barrister did what he had to do to get me the right result for the misogyny of the family court with officers and paid-for experts waiting to point their fingers and say ‘difficult woman, difficult woman’.

Because challenging women challenge them and their infrastructures, assessments and belittling of women.

So I’m here. And I’m ready to fight back for all those women who don’t have my strength or have had their resilience worn away by the family courts. It is time for change.

https://twitter.com/SVPhillimore/status/1129118565876097035

Fabricated and Induced Illness

This is a post by Sarah Phillimore. I was recently alerted to a Radio 5 Live Investigation into ‘Fabricated and Induced Illness’ [FII] in May 2019. I think this is a useful opportunity to explore FII in more detail for readers of this site. 

https://twitter.com/MumScots/status/1124948692606304256

The history of Fabricated and Induced Illness [FII]

Concerns that parents may exaggerate or even cause their children’s symptoms of illness have been around for a long time. It used to come with the flowery title ‘Munchausens Syndrome by Proxy’, from the fictional character Baron Munchausen who told outrageous lies about his non existent achievements.

Obviously, this description was confusing to many parents and professionals, as well as wrongly giving the impression that it was a psychiatric condition in its own right. As Kate Grieve commented in 2015, the case of R v LM [2004] QCA 192 at para. 67 (4 June 2004)  in the Supreme Court of Queensland, Australia, held that “the term factitious disorder (Munchausen’s Syndrome) by proxy is merely descriptive of a behaviour, not a psychiatrically identifiable illness or condition”. She further comments:

FII is not a mental illness as can be diagnosed. Perpetrators will have various psychological, psychiatric, and environmental features leading to the behaviour of fabricating or inducing illness in a child. FII is a form of child abuse where the perpetrator uses medical professionals as tools to subject the child to harm.

The Royal College of Paediatrics and Child Health of 2021 (see further reading below) refers to 3 different terminologies:

Medically Unexplained Symptoms (MUS) –  a child’s symptoms, of which the child complains and which are presumed to be genuinely experienced, are not fully explained by any known pathology. The symptoms are likely based on underlying factors in the child (usually of a psychosocial nature) and this is acknowledged by both clinicians and parents. MUS can also be described as ‘functional disorders’ and are abnormal bodily sensations which cause pain and disability by affecting the normal functioning of the body. The health professionals and parents work collaboratively to achieve evidence-based therapeutic work in the best interests of the child or young person.

Perplexing Presentations (PP) – a term introduced to describe the commonly encountered situation when there are alerting signs of possible FII (not yet amounting to likely or actual significant harm1), when the actual state of the child’s physical, mental health and neurodevelopment is not yet clear, but there is no perceived risk of immediate serious harm to the child’s physical health or life. The essence of alerting signs is the presence of discrepancies between reports, presentations of the child and independent observations of the child, implausible descriptions and unexplained findings or parental behaviour. 3.2.3

Fabricated or Induced Illness (FII) – a clinical situation in which a child is, or is very likely to be, harmed due to parent(s) behaviour and action, carried out in order to convince doctors that the child’s state of physical and/or mental health and neurodevelopment is impaired (or more impaired than is actually the case). FII results in physical and emotional abuse and neglect, as a result of parental actions, behaviours or beliefs and from doctors’ responses to these. The parent does not necessarily intend to deceive, and their motivations may not be initially evident. It is important to distinguish the relationship between FII and physical abuse / non-accidental injury (NAI). In practice, illness induction is a form of physical abuse (and in Working Together to Safeguard Children, fabrication of symptoms or deliberate induction of illness in a child is included under Physical Abuse17). In order for this physical abuse to be considered under FII, evidence will be required that the parent’s motivation for harming the child is to convince doctors about the purported illness in the child and whether or not there are recurrent presentations to health and other professionals. This particularly applies in cases of suffocation or poisoning.

The NHS describe it in this way.

FII covers a wide range of symptoms and behaviours involving parents seeking healthcare for a child. This ranges from extreme neglect (failing to seek medical care) to induced illness.

Behaviours in FII include a mother or other carer who:

  • persuades healthcare professionals that their child is ill when they’re perfectly healthy
  • exaggerates or lies about their child’s symptoms
  • manipulates test results to suggest the presence of illness – for example, by putting glucose in urine samples to suggest the child has diabetes
  • deliberately induces symptoms of illness – for example, by poisoning her child with unnecessary medication or other substances

How widespread is FII?

FII It is undoubtedly a ‘real thing’ and can cause serious harm to children as well as a massive drain on NHS resources. But it is also a rare thing – it is difficult to estimate with certainty how many cases arise each year, but some estimate about 50. The NHS refer to one study which published in 2000 which estimated 89 cases of FII in a population of 100,000 over a two-year period. However, they believe this figure is a likely under-estimate of the actual number of cases.

Taking a figure of 50 per year, is on a par with statistics around children who are murdered; 330 children were killed between 2009 to 2015  i.e. about 47 per year. Compare this with road traffic accidents  – in 2011, 2,412 children aged 0-15 years were killed or seriously injured on Britain’s roads. So about 7 children a day will die or be badly hurt on the roads as opposed to less than 1 a week being victim to FII.

Fiightback told Radio 5 Live that they had about 600 people seeking their support and 70% had been ‘cleared’. They had attempted FOI requests from LA to be told that no data was held about numbers of FII cases.

Concerns that cases of FII are rising

The group “Fiightback” was set up “to support those accused of FII, to fight for an unbaised criteria, a fair investigation and a pathway to rebuild the lives of those wrongly accused”. It shared with the BBC their worries about a ‘wave of false allegations’ of FII.

It now wants a review into the number of FII child protection investigations like Amy’s, as well as the FII guidelines for medical and social work staff.

It also wants national and local policy on responses to accusations of FII to be looked at, and new standards set.

Carol Monaghan MP – who has led calls in Parliament to raise awareness of FII – said she would support an inquiry.

She added: “Disturbingly, diagnoses can be made by health professionals who have not met or examined the child, and child protection procedures can then be instigated as a result of a remote diagnosis.”

I can’t comment on the statistics that inform that comment about ‘wave of false allegations’ because I don’t know them. I can’t find any references on the Fiightback website. All I can say that in my practice spanning 20 years I have only been instructed to act in a handful of FII cases. I have not encountered in the past few years any noticeable increase. And I would be very troubled if diagnosis of any medical condition was attempted by any doctor who had not actually met the child – unless this was a court authorised review of medical records collected by other doctors for e.g.

But if such concerns are raised, then it is right that they are properly investigated and we have clear evidence to either support or deny them. A suggestion was made in 2018 that such cases are on the rise because local authorities want to avoid paying for services – that is an extremely serious situation, if true. Andy Bilson commented to Radio 5 Live that the definition of FII appeared to be widening in some areas to include parents who ‘genuinely’ believed their child was ill – thus bringing into the net of suspicion those parents seeking services for their children.

Efficient and speedy investigation is needed.

FII brings the ‘perfect storm’ for a family justice system, already prone to risk averse decision making. FII represents something that doesn’t happen often, but when it does the consequences for child could be catastrophic. Little wonder then that many professionals may act defensively.

And of course, professionals are fallible. A decision made hastily to separate parents and child may turn out, after proper investigation to have been the wrong decision, based on imperfect understanding of the medical evidence as it initially presented. The Websters for example, whose child’s broken bones were caused by scurvy, rather than deliberate infliction of force. Sally Clark, who was convicted of murder on the failure of Professor Sir Roy Meadows to understand and apply statistics correctly.

We need a clear idea about how many cases there are and how many do not result in any findings against the parent – as the impact of such cases can be devastating if no findings are made. Amy, the mother interviewed by BBC Five Live commented :

I felt like my character was assassinated, my family was ripped apart and my child was stolen

So how do we manage these cases?

Few would disagree that if a competent medical practitioner raises a concern that a child is being hurt by a parent, that this needs to be investigated and the child kept safe while the investigation is carried out. The problem of course is that this investigation can often take many months or even years and throughout that time the child is likely to be living separately from his parents, although hopefully still having regular contact.

The key therefore must be to make sure investigations are carried out as efficiently and quickly as possible.  The NHS guidance for medical professions highlights the necessary steps.

  • Its important to have a senior paediatrician to carry out an overview of the case and to seek further specialist advice or testing if needed.
  • A detailed chronology must be written of all the available information related to the child’s medical history. 
  • Doctors must contact the relevant child protection team of the local authority’s children’s services to inform them of the concerns.
  • Other agencies involved with the child’s welfare, may be contacted in case they have information that’s relevant such as the child being absent from school.
  • The police will also need to be informed and all professionals must meet to discuss the best way to proceed with the case.
  • Covert (secret) video surveillance may be used to collect evidence that can help to confirm a suspected case of FII but this will require proper authorisation and is rare in practice as usually the parent will not be allowed unsupervised access to a child once concerns about FII are raised.  For a discussion about surveillance of families by social workers, see this post from Pink Tape. 

The LA will usually start care proceedings immediately and seek separation of child and parent, unless there are other family members who can help to provide constant supervision.  There may well be parallel police and care proceedings – while care proceedings should never ‘wait’ for criminal proceedings to get started or conclude, it is clear that if a live police investigation is also on going, this has the potential to cause delay.

As ever the focus must be on the evidence – what is needed, who is best person to provide it, and how should it be tested. This are not easy cases and will require more than most continuity of Judge and lawyers.

Further Reading

Re X, Y and Z (Children) [2010] EWHC – Application by local authority to withdraw from proceedings, under FPR r 4.5, for interim care of three children. Local authority ordered to contribute to the costs of the parents.

Concerns over Fake Illness Cases in Troubled GOSH department – April 2018 Melanie Newman

Safeguarding children in whom illness is fabricated or induced – 2008 Statutory guidance from Department of Education, on protecting children where carers or parents make a child ill or pretend a child is ill.

Regional Child Protection procedures for West Midlands – guidance on FII 2017

Achieving Best Evidence in Children Act cases. 

Guidance from the Royal College of Paediatrics and Child Health February 2021

Mums on the run: When you have tried everything else you have nothing else to lose

This is a post by Sarah Phillimore.

On April 4th BBC’s Woman’s Hour discussed the issue of mothers who repeatedly lose their children into the care system and the decision made by some to ‘flee’ the jurisdiction, sometimes with the financial and emotional support of an organised network of people.

This prompted some further discussion online. I have already written in some considerable detail about the issues that arise from this; see the posts set out in Further Reading below.

The conversation on line was very useful for clarifying some thoughts and questions about where we go from here.

A typical reaction to hearing the story of ‘Zara’ on the Woman’s Hour podcast was of shock and sadness. Why should any mother have to go through this? Just what is the scale of the problem and what can we do about it?

A number of parents asserted to me that ‘lots’ or ‘the majority’ of parents who left the UK ‘settled well’. I pressed them to help me understand what actual numbers informed this statement – and what happened to the minority who did not settle? The parents were not able to answer and seemed to find my questions an attack on their integrity and intelligence, which I did not understand. I was asking for the raw data that informed their confident assertions. After a few hours of such to and fro it became clear that no one knows the numbers. And that has been the primary issue that causes me concern about all of this.

One person provided screen shots of a group operating in Egypt which explained to parents

…. remember summer is blisteringly hot here. Not like a summer holiday. We want only mums who will fight to the end whatever the conditions to protect their child… medication to cope with withdrawal from drugs we can get… (winking face emoji)

Even that brief description suggests the risks to parents and children, many already vulnerable, are huge. Rather chillingly, one parent commented:

Genuine neglect, abuse and incapability cases never survive long… unless you can survive for 6 months with no income, don’t bother…

Those who offer money to send people out of the jurisdiction appear to undertake no risk assessment, keep no records and don’t record the progress abroad of the fleeing parents. We urgently need to understand the scale of the problem.  The ‘fight’ rhetoric is worrying and will obviously be appealing to desperate parents. As one commented via Twitter

And they wonder why we run when you have tried everything else – you have noting to lose

What is the scale of this problem?

One parent (who had left the jurisdiction and was now parenting her two youngest children, despite losing the older ones to the care system) suggested that about 50 parents ‘on average’ left the jurisdiction.  One parent wondered if a higher number of parents who already had dual nationality would leave the jurisdiction – but that, interestingly has not been my experience.

One person commented that the following three questions need to be asked

a) Why do parents flee

b) why do other countries not consider the same parents to be a danger to children?

c) what the hell is going on?

I think these are all essential questions to be answered. The problem is, that we need proper data in order to try and answer them.  I would like to know:

a) how many parents leave the jurisdiction each year to avoid care proceedings?

b) What countries do they go to

c) how many ‘do well’ and settle

d) those who don’t do well – what happens to them and their children?

 

Way forward

One parent suggested that I make a FOI to various LA to see how many port alerts they issued for parents. That could be useful information but it won’t answer my questions above. What does seem to be key here is getting more information about how other jurisdictions operate. Clare Fenton Glynn has done some useful work on this but I am not aware of much else that could help to answer the questions.

One parent suggested that the key difference was that no other jurisdiction recognises ‘risk of future harm’ in the way we do – I accept that this is a concept that causes many unease and which we investigated at #CPConf2018.

As one person commented:

… if process wasn’t adversarial from the outset there would be no need for mums to hit [social media] and look about fleeing… ban SWs from scaring mothers by saying ‘have any more, we’ll take that too”…

I would be grateful for any other suggestions about how we can collectively move forward to have sensible discussions about this. We need some hard data and we need to keep asking some hard questions. We need to know a lot more about how other countries operate. Although I do not have firm data, It cannot be right in 2019 that parents feel they have no choice but to uproot themselves from their own country and put themselves and their children at serious risk of harm.

Further reading

Mums on the run April 7th 2019 post by ‘Annie’ member of The Transparency Project and a mum who nearly ran.

Helping parents leave the jurisdiction – what happens when you don’t know the whole story, or you don’t care? August 2015 Child Protection Resource

Keep on Running September 2016 Child Protection Resource

Keep on Running Part II April 2018 Child Protection Resource.

 

Why does Every One Hate the Family Court? Part III what narrative is gaining traction – and why should this concern us?

This is a post by Sarah Phillimore

Too long didn’t read: there is a problem what I shall call the ‘DV Sector’, for want of a better title. There are a number of individual women and organisations who garner a lot of media attention, who have books and talks to promote and apparently the ear of credible and influential law and policy makers, including serving MPs. The narrative that some of them promote I think is actively harmful to reasonable debate and the rule of law. Their reaction when challenged is alarming. More people in the sector need to have the courage to speak up about this. 

This is part 3 of what is sadly highly likely to be a continuing series. If you are interested you can read Part 1 here from January 8 2019 and Part 2 from guest blogger Emma Sutcliffe from February 6th 2019.  This is an issue which has troubled and preoccupied me for some time now. I will let my previous words speak for themselves – if you are determined to see me as a ‘shill’ for a corrupt system, or biased against men, or hateful towards women etc, etc, then no doubt you will see what you want to see and no words of mine will persuade you otherwise.

However, the fact that I have been accused of all these things simultaneously (which I suggest is unlikely to be possible) reassures me that I am succeeding in my aim to be as fair and balanced as I can. Because I make people from very different ends of the argument equally angry.

I write this post because I think it is important to share with you something that happened to me recently. I will avoid using names, unless it is central to the point I need to make, as I don’t want this to appear a ‘front’ for any kind of personal vendetta. It isn’t. What I describe here is an illustration of a much wider and general issue which has really serious implications for us all. Because I believe it strikes at the heart of the rule of law, and the trust in which we can place in our court system.

My concerns escalated over the last few days with the publication via social media of a distressing video of a child being removed. This was strongly promoted by these ‘people of prominence’ and apparently taken up immediately without question or thought by a number of influential people such as the MP Jess Phillips and Clare Waxman, the Victim’s Commissioner for London. The reasons why such knee jerk response to one video in isolation can be harmful, and the legal implications of sharing it, have been set out fairly and comprehensively by Lucy Reed on Pink Tape. 

I will go into more detail below about my concerns below.

Giving child abusers moral authority.

I wrote about this on February 4th 2019, outlining my concerns that Victoria Haigh was setting herself up to gather ‘victims’ of the family court system to investigate why so many children were ‘given’ to fathers who perpetrated abuse. Why I was worried will be immediately obvious when you read the published judgments about what she did. I called her a ‘child abuser’ because that is what she has been found to be. I wondered aloud why ‘prominent members of the DV sector’ supported her. The reaction was swift and fierce. I was immediately blocked on Twitter by a number of such members of prominence. Fair enough. You don’t have to engage with me if you don’t want.

However, I then discovered that I now had a lengthy post on a website dedicated to me and my ‘hatred’ for trans women and homosexuals, together wth a lovely photograph of me and speculation about where I got my nice big house as a legal aid lawyer. (From a massive critical illness insurance payout if you are interested, but don’t let that get in the way of insinuations about my corruption). So far, so internet. What was disappointing albeit interesting was to note that a number of Haigh’s supporters had contacted the author. I think I can reasonably assume this because the author of the website has a twitter account with only six followers last time I looked. And one of them was a women ‘prominent in the DV Sector’.

So I think it must have been a person of prominence in the DV Sector who made this comment:

She’s a bully. She was trolling a woman who’s heading a domestic violence campaign, repeating what the family court judgement said about her when the whole idea of transparency is to question these. 

And that’s a very revealing comment indeed. The ‘whole idea’ of transparency in the family court system – which I wholeheartedly agree with and campaign to achieve –  is not to question court judgments. It is rather to know that they have been made and how they have been made. If you disagree with the judgment, you must appeal against it.

There are several court judgments against Haigh. She did not appeal. These judgments stand as the truth. This is the operation of the rule of law. It is not for any person, no matter how prominent they believe themselves to be in the DV Sector, to simply declare that they will not accept or believe a court judgment and that they can rewrite history if they wish.

Then matters took an even more sinister turn.

Vivien Hobbs and The Legal UK Partnership LLP

On 8th March 2019 I received an interesting email from Ms Hobbs from ‘the Legal UK Partnership LLP’ which had an address in Hatton Garden but no web presence at all from what I could find, other than a listing at Companies House. Nor did Ms Hobbs appear registered as a practising solicitor with the Law Society when i checked their website.

Her emails were all headed ‘private and confidential’ but as I do not think you can assert confidentiality over a potentially criminal attempt to extort money, I am going to ignore that. If I am wrong to do so, no doubt Ms Hobbs will take legal action against me.

Dear Ms Phillimore

We represent Victoria Haigh, a racehorse trainer and former model. You will be familiar with our client from your online postings via Twitter and your blog.

We write in respect to certain false claims and allegations made against our client, those being widely published using your barrister profile via Twitter and your blog as the source of such.

Your false claims and allegations include, where you falsely state and insinuate that our client has been convicted of crimes of which she has never been convicted, including, the attempted abduction of a child and child abuse.

Our client is deeply concerned and distressed concerning these false claims. Please therefore in the first instance provide the source of your information to enable these matters to be promptly dealt with.

In the circumstances, it is only sensible that you immediately remove any claim which cannot legally be supported, where we should advise that the continued presence of these false and highly defamatory allegations is causing significant damage to our client’s reputation.

Should we not gain your co-operation by close of business today, we will immediately submit a formal complaint to your regulator and escalate matters otherwise. Please note that a copy of this correspondence is simultaneously being submitted to your regulator anyway to ensure there is no loss of time in dealing with the fallout from this defamation.

We await your urgent reply, however, in the meantime, you may wish to pass a copy of this notice to your insurer.

I found this quite an odd email and immediately doubted its provenance. However, I appreciated that I referred to Ms Haigh as having committed the offence of attempted child abduction when in fact she received a 3 year prison term (later reduced on appeal) for breach of a non molestation order. She approached her child who was sitting in a car on a petrol station forecourt despite knowing that she was prohibited from doing so. The serious nature of that breach was no doubt reflected in the initial prison term of 3 years.

I accept it is always important to be clear and accurate, so I edited my blog post to be clear about the precise nature of Ms Haigh’s criminality, and I made it clear I had done so.

Unfortunately Ms Hobbs was not happy.  She replied on March 14th to say

In the circumstances, we are providing a further twenty-four hours for you to remove all remaining offending material and for you to submit an offer of settlement with respect to the damages due to our client. Should matters proceed to court, our client has been advised that the court would consider the sum of £300,000 as just and reasonable compensation for what she has suffered and continues to suffer. This sum does not take into account any loss of licence which would bring to an end our client’s substantial racehorse training business. We further believe that you have brought your profession into disrepute and acted without integrity, where accordingly, you may be subject to disciplinary proceedings and be disbarred. It is therefore hoped that you act reasonably where we await your urgent reply.

I replied in the following terms. I had previously asked Ms Hobbs to confirm her professional status and give me details of her firm’s insurer, but received no reply to those queries.

I am disappointed but – given the bizarre tone and contents of your emails – not really surprised, to receive no information about your professional status by 4pm today as requested.

Let me be frank. I consider what you are doing is verging on a criminal attempt to extort money with menaces. Your claims and assertions are absurd.

Please do think very long and hard about what you are doing….[redacted]

I do not expect to hear any more from you but please do not doubt my willingness to engage if you do not immediately desist.

It is now April 3rd and I have yet to hear further from Ms Hobbs.  I find it very odd that any kind of venture that purports to be in a position to secure payouts of £300K for their client  has no web presence at all. I remain of the view that this was some kind of attempted extortion and I can imagine many people receiving this kind of correspondence would have been extremely frightened. As no doubt was the intent.

Conclusion

So in just a very short space of time I have seen some clear examples of really abusive and frightening behaviour from those who claim that they are speaking for the voiceless victims of the evil, secret family courts.  To claim that such people cannot be challenged because they are ‘prominent’ in their field is getting things back to front. You earn prominence and respect because of your words and deeds. Your prominence does not insulate you from reasonable criticism of your words and deeds.

To be blunt – as I know no other way to be – am very worried about what is happening in the ‘DV Sector’ and this relentless narrative that the family courts are designed as deliberate tools of oppression against women. As my experiences show, women can be every bit as abusive,  manipulative and dangerous as men. It is naive to claim otherwise. Not everyone who seeks to identify as a victim actually IS a victim.

Distinct binary divisions between ‘perp’ and ‘victim’ are rare. The truth is often much messier than that. Those who seek to deny this obvious truth should not be allowed to hijack a very necessary and serious debate about how to make the family justice system better.

However, sadly it looks as if there will be many more videos to come.

 

EDIT APRIL 4th 2019

I am pleased to note that Clare Waxman has deleted her original tweet sharing the video. What is less happy is that my various questions to her went and continued to go unanswered.

https://twitter.com/SVPhillimore/status/1112237819639070720

Edit April 4th 2019 a bit later 

I have had more emails from Ms Hobbs who seems even more displeased.

Despite formal notice and your legal and professional obligations, it has come to our attention that you have further fallen in default of those by committing to yet more defamation and breach of duty of confidentiality with respect to recent posts on your website. Unless all reference to our private and confidential communication and ourselves is removed with immediate effect, these further breaches will be added to the Notice of Claim which is now being prepared by counsel following receipt of your BSB disciplinary record.

We note that your past professional misconduct history falls directly line with your current demonstrating extreme recklessness and abandonment of duty in relation to family proceedings. Your behaviour is reprehensible, where it is absolutely clear you are unfit to practice let alone family law. This notice is being copied directly to your regulator which has been made aware of what is in transition, including, where we are seeking disciplinary action and draconian sanctions. We understand that you have also been reported to the police for similar breaches and acts of malice.

And Ms Haigh has begun tweeting.

https://twitter.com/SVPhillimore/status/1113847316279169026

I have replied to Ms Hobbs

Dear Ms Hobbs

I stand by everything I have said and will willingly repeat all and any of my allegations in any arena.

I have asked you repeatedly for confirmation of your professional status and your firm’s insurance details.

You have failed to provide those details. I draw from that certain conclusions.

Any further emails from you will be deleted unread.

I suggest you get on with issuing your claim, but maybe consider with your client how well her public attempts at intimidation and harassment of me via Twitter this afternoon will play before a court. I confess I find it rather an odd strategy but no doubt your counsel can advise.

 

I do not resile from anything I have written here. I will not remove it unless I am ordered to do so by a person or organisation with rather more authority than Ms Haigh or Ms Hobbs. I shall look forward to defending myself in an open court.

EDIT APRIL 9th 2019

I am grateful to be alerted to the following judgments on BAILII which provide further interesting insights into the operation of the ‘Legal Uk Partnership’.

First we see the case of Welch v Welch [2017] EWFC B32 (19 June 2017) which has this interesting paragraph – emphasis added. The applicant in this case is one Vivien Welch, who I shall assume is now calling herself Vivien Hobbs

It is perfectly clear that the wife’s obsessive behaviour in relation to these matters has continued, arguably worsened. Becoming aware of their identity from the sale documentation, the wife has bombarded the prospective purchaser (Mr Davis) and his solicitors (Hadfields, Butt & Bowyer) with barrages of misinformation and invective deliberately and maliciously designed to frighten them off from the transaction. In these communications she has wilfully misinterpreted the court process and mischievously misrepresented the facts. In a deliberate attempt to add authority to the bombardment she has misrepresented herself as a legal representative of herself practising under the title “Legal UK Partnership” (as far as I am aware she has no legal qualifications whatsoever). Perhaps not surprisingly, Mr Davis has been frightened off – no doubt it was easier to seek a property which did not have these conveyancing complications – and the wife has, once again, frustrated the husband’s legitimate desire to enforce my order of 9th September 2014. The wife is utterly unrepentant about all of this, believing her steps to be wholly justified. There is every reason to believe that, given the chance, she will do exactly the same thing again. One aspect of all this, which makes the wife’s behaviour all the more extraordinary, is that on completion of the sale, she will only receive 1% of the proceeds, and whatever she may receive is already subject to charges which outweigh its value.

Going back a few years to  Welch v Welch [2015] EWHC 2622 (Fam) (31 July 2015) we see the same Ms Welch, this time described at paragraph 3 of that judgment:

n judgments in the present proceedings District Judge Hess has, in a number of places, described the approach of the wife both to that litigation against her first husband and this litigation against her second husband as obsessive, or obsessional, and indeed irrational. By way of example only, District Judge Hess said at paragraph 87 of his judgment dated 9 September 2014 that ‘…in this litigation, and in the previous litigation, the wife has…been obstinate, unrealistic and obsessive’. I stress that those are his words after hearing evidence over several days. They are not my choice of words; I merely repeat as part of the background what that judge concluded.

On one level this is funny. I now await the writ of libel being prepared by Ms Hobbs and her mysteriously as yet unnamed counsel with anticipation boardering on the gleeful.

But on the other hand it is not funny at all. Ms Haigh is being promoted and supported by some ‘big names’ in the DV sector. And this is how she operates. Are those promoting her aware of this. I am very afraid that the answer to this question is ‘yes’. The implications for the progress of any meaningful discussion about this area of law and practice are pretty stark. If your campaign is fuelled by the obsessive and irrational – where do you think it is going to end up?

 

When should a child’s trans identity be permitted to be a material issue in a family case?

This is a post by Sarah Phillimore

On March 26th I was alerted to what I was told was a blog post by a lawyer for the charity Mermaids. The lawyer does not identify him or herself or claim any affiliation to Mermaids but the title of the blog is clearly identified as about ‘Trans Law’ and the author purports to be a qualified and registered solicitor. I will assume therefore that this analysis of the law may be read with interest by charities and other campaigning groups which assert that they protect the rights of trans children.

The blog is entitled When should a child’s trans identity be permitted to be a material issue in a family case?

I am concerned by what I read in this blog post. Not because I am a bigot who hates transpeople. But because I am a lawyer and I respect the rule of law. The law is no salve to hurt feelings. The law exists to constrain or promote behaviour that can be identified on evidence, to either the civil or criminal standard of proof depending on the nature and quality of the act.  The law is interpreted and applied by those qualified and trained so do to. It is not something that is within the power of any one individual to describe and enforce.

So what is my problem with this blog? It promises to be 1 of a 4 part series. The inherent and fundamental problem is set out in its very headline which manages with admirable economy to set out a broad and undefined term – what is a child – coupled with an a priori assumption about the existence of ‘trans identity’.

So there are two issues we need to unpick:

First – what is a child?

Second – how and when is the transgender identity of a child discovered?

What is a child?

A child is a human aged between 0-18 years. The difference between a toddler and a 16 year old is vast. That span of time encompasses the growth of a child from not much more than a blob to a thinking, reasoning, decision making human being. There can also be huge differences between even neuro typical 12 and 15 year olds. For these obvious reasons, the law operates on a ‘sliding scale’ when it comes to children and the weight that must be attached to their wishes and feelings.

As a rough rule of thumb a child under 6 is highly unlikely to be able to formulate a world view that differs significantly from the adults caring for him or her. However, most children over 16 years old will be able to make their own decisions and the courts recognise the futility of attempting to impose orders upon them at this age – note for example the provision in the Children Act 1989 that private law orders will only be made about 16 year olds in the most exceptional circumstances.

The difficult age range is likely to be between 12 – 15 years when many children will present as articulate and fluent and may have quite decided ideas about what is in their best interests but have still only lived on this earth for a brief span of time and still require the guidance, love and support of their adult carers.

Most neuro typical children in this age bracket are likely to be considered ‘Gillick competent’ and able to make decisions about their basic health and welfare which must be respected by their adult carers.  However, even a Gilick competent child may find the court willing to force them into treatment if there are sufficient concerns about their welfare, for example when refusing a heart transplant. Such matters are clearly highly fact specific and will be decided on a case by case basis.

On this very short and rough analysis hopefully it is immediately clear that to talk of ‘a child’, defined in law as any person under 18, without any attempt to reflect the ‘sliding scale’ of a child’s autonomy and capacity to make serious decisions, is simply ludicrous. The court would not treat a 6 year old in the same way as a 16 year old and no one could assert in good faith that they should.

So the author of the this document will need to revisit it and set out their understanding of the law with regard to a) very young children and b) children who are Gillick competent but not yet 16 .

 

How and when is transgender identify discovered?

This question is of course inextricably linked to the issues raised above about Gillick competence. If the mother of a 4 year old asserts the her son ‘disdains his penis’ and wishes to live as a girl, the court is going to subject this to rather more anxious inquiry than if the same child was a teenager.  This is exactly what happened in the case of Re J which I discuss at length in this post in December 2018: ‘In whose best interests? Transgender Children: Choices and Consequences’

And who was the charity which supported this mother in court, which condemned the Judge’s decision to remove the child from the care of his mother into his father’s care (where he lived happily as a little boy), and promised an appeal of the decision that never came? Mermaids of course.

I commented in December that it would have been good to have seen a little humility from Mermaids that they had backed the wrong horse in this case and supported a mother to do significant harm to her child by way of emotional abuse. If this blog post is indeed from a self identified lawyer for the Mermaids charity, this shows me that any such hope was naive indeed.

The author comments:

As a matter of legal principle and good practice (and to avoid frustration from the Bench), a child being trans should not come in to a case’s dialogue unless

it is materially relevant to an issue in question; or

it can be legally justified as a materially relevant issue in and of itself, i.e. the child’s trans identity is a contested ‘fact’.

I don’t take issue with that. I accept that there are a small minority of children who experience ‘gender dsyphoria’ and who seek and are entitled to help and support about that. I would however be astonished if any child under 6 – and the child in Re J was four years old – could ever fit into that category. For younger children, any self declaration about ‘disdaining’ their body is going to come from one of the parents and it cannot simply be accepted at face value, as Re J clearly shows.

The author rather skates over Re J and its implications (and certainly makes no mention of the role Mermaids played in encouraging a mother to cause harm to her child) and says

Further case law is needed to clarify the nuance between the scenarios of ‘forcing a child to be trans’ as emotional abuse in itself,

I don’t agree with this comment. It does not seem to me a matter of any uncertainty that ‘forcing’ a child of any age into ANY identity which they do not in reality choose, can be anything other than emotional abuse of a really serious kind. However, the author seems to go even further and seems keen to discourage the very analysis that he/she says is necessary. There is a clear wish to turn the spotlight away from any anxious inquiry into the truth of a child’s circumstances:

It would and will always be deeply problematic and symptomatic of the historic ‘gender policing’ (to which the trans population, both in the UK and across Europe, have been subject to) should the court be used to decide on whether someone, in this case a child, is ‘actually transgender’ or not. This is not the courts (nor anyone’s) – save for the individual themselves – right.

And this of course is a nonsensical assertion. It is entirely the job of the family court’s to concern themselves with a child’s welfare and make decisions for them when their parents cannot or will not. To afford a very young child ‘a right’ to determine something so significant is not protecting children’s welfare – it is rather risking them as proxies for the psychological dysfunction of their parents.

The author then appears to argue that such anxious inquiry must also be avoided in case it ‘triggers’ the child.

…the Issue must be dealt with incredibly delicately. Not doing so would be extremely dangerous as it would have an intrinsic risk of violating the subject child’s Article 8 and Article 14 rights, but it is also exposing a child to a triggering scenario that may subject them to psychological harm.

Again, this is – in my view at least – an assertion that is both dangerous and foolish. To assume that investigating a child’s situation will in and of itself harm the child is to assume a great deal about what is actually being investigated. I understand that it may well be embarrassing and painful for a 15 year old to have to justify the decisions they want to make about their own body and I do not think that the court should inflict this upon any Gillick competent teenager.

However, to suggest that we shy away from what emotional abuse a parent might be inflicting on a 4 year old, in case we risk ‘triggering’ that child is utter, unmitigated hogwash. This line of thinking puts children at risk of very significant harm indeed.

But the real beating heard of the argument is here.

….someone’s gender identity, at any age, must be respected. A child identifying as trans, whether it has been submitted this is as a result of harm or not, is identifying as trans and that must be respected throughout proceedings…More often than not, if a child says they are trans, they will be trans.

As I hope I have made clear, any such assertion made without attempting even the barest of analysis of the vast gulf in understanding and capacity between a 6 year old and a 16 year old is an assertion of no value. Worse than that, it is an assertion which attempts to pave the way to leave young children entirely unprotected from their parents.

Most parents love their children and want to do what is in their best interests. A small minority of parents fail to do that. The courts absolutely must be ready, willing and able to step in and to protect such children.

Further reading

Interesting discussion in Lancashire County Council v TP & Ors (Permission to Withdraw Care Proceedings) [2019] EWFC 30 around concerns that parents:

  • have acted in a precipitate manner in relation to perceived gender dysphoria in children in their care (aged 13 and 6 years)
  • are resistant to acknowledging any potential disadvantages to R and H of being identified as transgender prematurely and the impact on their emotional, physical and sexual development. They are unable to provide appropriate and balanced support to R and H to make informed decisions as they get older.

However, largely as a result of the experts reports, including that of Dr Dr Pasterski, a consultant psychologist specialising in gender identity,  the local authority accepted that the threshold as it was originally drafted, could not be sustained and should not be pursued. The LA therefore asked for permission to withdraw its application for care orders, and the court allowed this.

The most interesting paragraph, in my view, is 75 where the court concluded:

In respect of paragraphs 29(a) and (b) of the vestigial possible threshold in respect of the concerns about the early and complete social transition of R and H, and the alleged unwillingness of CP and TP to recognise the long-term implications of such an early transition the evidence of Dr Pasterski compellingly rebuts these concerns. Her evidence in respect of the ‘2 critical historical misunderstandings‘ not only explains the approach of CP and TP but provides clinical justification for that approach. Notwithstanding even the Guardian’s caution in respect of the openness of CP and TP to the possibility of an alteration in the children’s attitude to their gender identity I conclude that Dr Pasterski’s evidence demonstrates that it is obvious that neither of these grounds would meet threshold. Taken together with the panoramic evidence of the child focused approach of CP and TP it is overwhelmingly obvious that neither H nor R have suffered or are at risk of suffering significant emotional harm arising from their complete social transition into females occurring at a very young age. The evidence demonstrates to the contrary, this was likely to minimise any harm or risk of harm. The evidence does not support the contention that it was actively encouraged rather than appropriately supported.

H at the time of judgment was 6 years old and had been ‘supported’ to transition at an even earlier age. The elder sibling had also ‘transitioned’ before the age of 8 years. I am not confident that it is a safe finding to conclude that there was no risk to the psychological integrity of such young children for adults to be ‘supporting’ transition. It is difficult for me to understand how the court can so cleanly draw a distinction between ‘active encouragement’ and ‘appropriate support’ when such activity was occurring when H was only four years old:

In addition, H was sent to primary school dressed in a girls’ uniform (aged 4), when the school expressly asked that this not happen.

No doubt there will be other cases to come, so watch this space. I hope that Dr Pasterski’s evidence can stand the test of time, otherwise some very young children are going to find their life course altered in ways that may not be in their best interests as they grow.

EDIT thanks to Twitter, I have been alerted to another case via a mumsnet thread, which makes the Judge’s apparent uncritical acceptance of Dr Pasterski’s evidence here even more worrying.

The link to the reported case in that thread no longer works: it is here Jay v Secretary of State for Justice [2018] EWHC 2620 (Fam) (08 October 2018).  I note para 29 and the evidence of Dr Barrett which raises the issue that a wish to transition may arise from other elements of disatisfaction. Dr Pasterski however was able to opine without any reservations that Ms Jay had gender dysphoria:

“Separately, and recently, she reports gender identity problems. Her history, if taken at face value, is reasonably consistent with this diagnosis but the difficulty is that other aspects of that history are rather directly at odds with the documentary records leading me to have doubts about the veracity of her whole history – which would include a reasonably consistent history of gender identity problems. This aspect might be made clearer if a source other than [Ms Jay] could be interviewed …. If collateral collaboration is elicited I would reach an additional diagnosis of some sort of gender identity disorder. Whether the intensity of gender dysphoria caused by that disorder is great enough to merit or require a change of gender role might be explored in the setting of a gender identity clinic; it might be sufficiently intense in a prison but not so outside one and in civilian life, for example. If collateral corroboration is not convincingly elicited I would have grave doubts and wonder whether [Ms Jay]’s somewhat dependent personality had caused her to unwisely latch onto a change of gender role as a seemingly universal solution to both why her life had gone wrong and how it might be rectified.”

What weight do we attach to the welfare of a child when considering publishing information about care proceedings?

This is a post by Sarah Phillimore

This post is the text of my advice to the journalist Louise Tickle with regard to the extent to which the welfare of the child would be considered ‘paramount’ in any application to publish information about care proceedings.  This matter was raised before the Court of Appeal by Paul Bowen QC on February 15th 2019 as potentially an issue with which the Court should grapple when considering Ms Tickle’s application, but all agreed that this was not the appropriate case to investigate such arguments – though no doubt it will require resolution in some future case. 

I conclude very firmly that the child’s welfare simply cannot be paramount in any attempt to balance the competing rights protected by Articles 8 and 10 of the ECHR. Paramount means ‘more important than anything else; supreme’. It therefore cannot be part of any ‘balancing exercise’. If a right is ‘supreme’ then it will always tip the scales in its favour, no matter what counterbalancing weight is added to other side of the scales. To afford the child’s welfare ‘paramountcy’ would be to render the balancing exercise obsolete. 

I stress that what follows is my own view – the potential for further interesting argument is underscored by the fact that at least one QC who has read it expresses scepticism about my conclusions. Watch this space!

Advice concerning any possible ‘tension’ in the applicability of the paramountcy principle to those cases where requests are made for publicity

I have been asked to consider the following remarks made by the President of the Family Division in the case of In re W (Children) (Care Proceedings: Publicity) [2016] EWCA Civ 113 2015 Nov 23; 2016 Feb 25 (para 41 – 43):

During the hearing of the appeal we accepted the jointly argued approach of counsel and that, in turn, was the basis upon which we came to the decision on the appeal which we announced at the conclusion of the oral hearing. In the process of preparing this written judgment, however, I have come to the preliminary view that there may be a conflict, or at least a tension, between the apparently accepted view that welfare is not the paramount consideration on an issue such as this, on the one hand, and Court of Appeal authority to the contrary on the other hand. As this present judgment is a record of the reasons for our decision announced on 23 November 2015 and that decision was based upon the children’s welfare not being the paramount consideration, I do no more than flag up this potential point which, if it is arguable ,must fall for determination by this court on another occasion.
The key authorities to which I am referring are a criminal case in the House of Lords, In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47; [2005] 1 AC 593; [2004] 3 WLR 1129, a private law family case in the Court of Appeal, Clayton v Clayton [2006] Fam 83,and a public law child case in the High Court, In re Webster [2007] 1 FLR 1146.
Although, in my view, a reading of those cases may give rise to a potential point relating to the paramountcy of the child’s welfare, which, as I have stated, must fall for determination on another occasion, it is not necessary to go further in this judgment and consider the matter in any detail.

Summary

It is my very clear view that there is neither ‘conflict’ nor ‘tension’ as to when we must apply the paramountcy principle in cases involving requests to allow or restrict publicity about a case that involves a child. What there is however is potential for confusion, which in my mind is most likely to flow from a lack of engagement with what ‘welfare’ requires in any given case; a view having appeared to have taken hold of late that any publicity is of necessity a ‘bad thing’ for a child. I note for example and with some concern the President’s recent championing of the ALC/Brophy research about the views of ‘young people’. Given the small and self selecting nature of their research group, I and many others do not consider that research can properly bear the weight that some apply to it.

Having reviewed the authorities cited by the President it does not appear to me that there exists any such declaration, obiter or otherwise, against settled understanding. What would probably assist both practitioners and the judiciary would be some clear pronouncement in these current proceedings as to the necessary distinction between two different classes of case: Is the court faced with:
a. a matter directly pertaining to the child’s upbringing – when welfare IS paramount and IS the trump card –BUT still needs to be identified;
b. Or a matter of much wider significance that engages the rights and freedoms protected by Article 10 of the ECHR – when the welfare of any individual child, while relevant and important cannot be the ‘trump card against the Convention rights of others and a balancing act then commences.

In the latter scenario it is clear that it would be unlawful to then ‘put the child’s welfare on a pedestal which is incompatible with a Convention right’ (see Mr Justice Munby as he then was, at para 59 of his judgment in Norfolk County Council v Webster & Ors [2006] EWHC 2733 (Fam)

I assert that the correct distillation of the current law that is that there is no special privilege accorded to children who are the subject matter of proceedings save as is strictly necessary for their protection in the context of the proceedings themselves – see R v Central Independent Television PLC 1994 Fam 192 at 207 per Waite LJ.

In cases where ‘welfare’ is the paramount consideration, the analysis cannot simply stop there and on an assertion that greater publicity will inevitably harm the child. There must be a clear analysis of what exactly is proposed by way of greater publicity and what exactly it is anticipated will be the impact on the child – note the analysis carried out in Clayton v Clayton [2006] EWCA Civ 878.

 

I shall explain my reasoning in more detail below.

The statutory basis for the paramountcy principle.

In proceedings under the Children Act 1989 section 1 (1) reads:

When a court determines any question with respect to—
(a) the upbringing of a child; or
(b) the administration of a child’s property or the application of any income arising from it,
the child’s welfare shall be the court’s paramount consideration.

We are given little assistance in fleshing this out in the definitions section which reads simply:
“upbringing”, in relation to any child, includes the care of the child but not his maintenance;

The dictionary definition of ‘upbringing’ is
the treatment and instruction received by a child from its parents throughout its childhood.

If the court is deciding a matter that goes to ‘upbringing’ then children do rightly have this special privilege of a ‘trump card’. The matter before the court is relating to their private family life and the decision made by the court will matter hugely to them, but probably not very much to anyone else outside their family circle.

 

The authorities considered by the President

A possible explanation for how confusion has arisen with regard to the applicability of the paramountcy principle may be seen from the comments of Lady Justice Hale (as she then was) in the Court of Appeal when considering Re S [2004] (op cit).

This case involved a decision by Hedley J to dismiss an application for an injunction restraining the publication by newspapers of the identify of a mother who was on trial for the murder of her elder child. This had been sought to protect the privacy of the younger surviving sibling who was not involved in the criminal proceedings. A child psychiatrist had opined that if there were a ‘long period of adverse publicity’ this would significantly increase the surviving child’s propensity to develop a ‘psychiatric disorder’. However the Court of Appeal dismissed the appeal by a majority and the House of Lords came to the same conclusion.

Hedley J commented that he would have come to the same conclusion even if he had been persuaded that the surviving child’s welfare was paramount. Hale LJ rightly commented that this was an odd thing to say; had the child’s welfare been paramount then it was the ‘trump card’. However, it was not felt necessary to resolve this ‘dilemma’, presumably because all agreed that the child’s welfare was NOT paramount in these circumstances. The House of Lords eventually decided that Hedley J had made the right decision but had not properly carried out the required balancing exercise between the child’s right to privacy and the established importance of criminal proceedings being open and transparent.

Therefore, it does not appear to me that Re S raises any difficulty about the general proposition that the child’s welfare is NOT paramount in such cases. This was about a criminal trial and the identification of the defendant. It did not concern the child’s upbringing – but no doubt might have some impact on it. However, and sadly as Hedley J identified, it was ‘inevitable’ that those who know the child would realise who he was and the nature of his mother’s alleged crime, whether she was named or not.

The cases of Clayton and Webster engaged in more detail this distinction between cases involving ‘upbringing’ and those that engage much wider concerns about rights of freedom of expression .

For example, in Clayton, the father had been restrained from publishing any information about matters concerning his daughter until her 18th birthday. The father argued that this impeded his ability to effectively lobby, comment upon or campaign about the family court because this involves discussion of the human aspects of individual cases and specifically his own. Although he had behaved badly and abducted his daughter to Portugal, the parents had in the end been able to agree shared care arrangements and he wanted to be able to talk about that.

The court agreed that the father should not be restrained from his campaigning work as this was a legitimate wish and those activities did not relate to the upbringing of C or substantially engage her welfare interests. His one proposal that did engage her upbringing was his wish to return with C to Portugal and film her there, possibly for a documentary. The court refused to allow this, describing it as a ‘self exculpatory publicity exercise’.

So again, there is no identifiable tension here. Where the matters did not pertain directly to C’s welfare, the balancing exercise between Articles 8 and 10 had to be conducted. Where the matter did pertain directly to her welfare then this was the paramount consideration and overrode the father’s wish for greater publicity.

An interesting tension however does arise in paragraph 59 where Sir Mark Potter comments that even when welfare is paramount ‘it does not exclude the necessity for the court to consider Article 8 and 10’, citing Re Z A Minor 1997 Fam 1.

This would appear to contradict Hale LJ’s observation that the welfare principle, if applied, was indeed the trump card and renders the distinction between ‘upbringing’ and ‘non- upbringing’ cases as obsolete. It is then even more intriguing that the President appears to have identified a rather different tension in the opposite direction!

However, it is my assertion that this is arid territory and matters are drifting into unnecessarily complication. The ‘tension’ – such as it is – is clearly sensibly resolved by the focus being on whether or not the court are engaged with matters of ‘upbringing’ .It may not always be possible to draw a clear line but I suggest that there will be certain classes of case that fall more clearly on one side of the line than others.

For example, the present case under appeal cannot, in my view, be sensibly characterised in any way as relating to any child’s upbringing. The Article 10 rights in play relate clearly to the public interest in being able to discuss what happened to a mother who needed to find £20K to fund an appeal against a decision that was found to be inadequate by the Court of Appeal – a decision that could have lead to the adoption of her child by strangers.

There is further useful discussion in the case of Webster. This had involved a considerable amount of publicity around the birth of the Webster’s fourth child – their elder three children having been removed and adopted in what the Webster’s and many others asserted was a gross miscarriage of justice. Munby J (as he then was) opened the proceedings to selected media representatives. Again, this was not a case about ‘upbringing’ of an individual child but broader comments on the operation of the family justice system.

As Munby J stated at para 59 of his judgment, he agreed with the submissions of those who argued that section 97(4) of the Children Act had to be read as permitting the court to dispense with the prohibition on publication in section 97(2) where the right of free expression under Article 10 or other Convention rights require it:

‘To do otherwise would, as Mr Warby put it, place the child’s interests on a pedestal in a way which is incompatible with the Convention. I agree’.

Any attempt to argue that ‘upbringing’ should be extended to include influence on those rights and freedoms protected under Article 10 of the ECHR would, in my view, fall foul of section 3(1) of the Human Rights Act 1998 which requires legislation to be read and given effect in a way that is compatible with Convention Rights.

The rather intriguing comment that the balancing exercise should still follow even after identification of welfare as paramount, is in my view best explained by reframing that concern as the need for a proper analysis of what the child’s welfare actually requires in any given case. Clayton shows the court clearly engaging with this and considering in some detail exactly what the father proposed by way of additional publicity and what the impact on the child should be.

Conclusion

I therefore propose that the Court of Appeal should be invited to state the law in the following way:
a. The principle that the child’s welfare is paramount applies only to those cases directly engaging issues around the child’s upbringing.
b. Cases which involve significant media interest around issues pertaining to matters of wider importance – such as proper conduct of criminal proceedings or a wish to shine a light on a possible miscarriage of justice – are unlikely to be categorised as relating solely or even primarily to a child’s upbringing and the balancing exercise between Articles 8 and 10 must then be undertaken
c. Even if the court decides the child’s welfare is paramount, that still requires some analysis of what ‘welfare’ actually demands; it cannot be assumed that the mere fact of publicity will cause a child harm.

EDIT MARCH 9th 2019 – Consideration of further case law.

Paul Bowen QC asked me to consider further 2 authorities; one from the Constitutional Court of South Africa Case CCT 53/06 [2007] ZACC 18 and R v Petherwick [2012] EWCA Crim 2214.

On considering these two cases, I remain firm in my view that ‘paramountcy’ alone using its dictionary definition as ‘supreme’ is an empty vessel. One cannot determine ‘paramountcy’ without a clear sighted analysis of what impact each decision will have on each child.  The South African Courts appeared stuck with the very broad reference of their Constitution but managed to wiggle out by reframing ‘paramountcy’ as requiring a detailed analysis of the impact of the decision upon the child, whilst weighing in the balance competing rights that impacted on society more widely.

I do not accept that section 1 of the Children Act bears comparison to section 28 of the SA Constitution as it is explicitly restricted to matters of ‘upbringing’. If I am wrong about that, it seems to matter not as presumably the English court could simply follow the South African example and accept that ‘paramount’ when applied to questions of children’s welfare in the context of wider societal demands – such as imprisoning criminals or letting journalists do their job – cannot possibly mean ‘supreme’ but rather a reminder that we must focus on the impact of each decision on the child and strive for the most proportionate balance between competing rights and interests.

The first case in the South African court asked the question:

When considering whether to impose imprisonment on the primary caregiver of young children, did the courts below pay sufficient attention to the constitutional provision that in all matters concerning children, the children’s interests shall be paramount?

This case involved a single mother of three children, two teenagers and an 8 year old. She was a habitual fraudster and was eventually sentenced to four years in prison, despite a report saying the mother was a strong candidate for a non-custodial sentence.The Centre for Child Law of the University of Pretoria was admitted as amicus curiae and made wide-ranging written and oral submissions on the constitutional, statutory and social context around this question.

The court agreed that the nature of the crime, the personal circumstances of the criminal and the interests of the community are all relevant considerations when determining the appropriate sentence for a criminal offence.  It cited with approval the words of Friedman J in the case of Banda who advanced a clear balancing exercise between these tensions:

A court should, when determining sentence, strive to accomplish and arrive at a judicious
counterbalance between these elements in order to ensure that one element is not
unduly accentuated at the expense of and to the exclusion of the others.

The issue now before the court was the extent to which the Constitution had impacted upon this balancing exercise. Section 28(2) of the Constitution provides that “[a] child’s best interests are of paramount importance in every matter concerning the child.”

There were already serious questions about the efficacy of such a wide-ranging provision. The court cited Van Dijkhorst J in the case of Jooste:

The] wide formulation [of section 28(2)] is ostensibly so all-embracing that the
interests of the child would override all other legitimate interests of parents, siblings
and third parties. It would prevent conscription or imprisonment or transfer or
dismissal by the employer of the parent where that is not in the child’s interest. That
can clearly not have been intended. In my view, this provision is intended as a
general guideline and not as a rule of law of horizontal application. That is left to the
positive law and any amendments it may undergo.”

However, the court then went on to comment about the necessary change in ‘mind-set’ brought about by the UN Convention of the Rights of the Child, reflected in the constitution:

The unusually comprehensive and emancipatory character of section 28 presupposes that in our new dispensation the sins and traumas of fathers and mothers should not be visited on their children.

The court referred to a variety of commentary about the inherent weakness in any argument about ‘welfare being paramount’ or that matters must be decided ‘in the child’s best interests’ – because everyone had such different ideas about what exactly this would encompass. However, the court ingeniously declared that far from this being a weakness it was as strength – as it pushed people to clearly focus on the individual child before them.

Yet this Court has recognised that it is precisely the contextual nature and inherent flexibility of section 28 that constitutes the source of its strength. Thus, in Fitzpatrick this Court held that the best interests principle has “never been given exhaustive content”, but that “[i]t is necessary that the standard should be flexible as individual circumstances will determine which factors secure the best interests of a particular child.”29  Furthermore “‘(t)he list of factors competing for the core of best interests [of the child] is almost endless and will
depend on each particular factual situation’.”30 Viewed in this light, indeterminacy of
outcome is not a weakness. A truly principled child-centred approach requires a close
and individualised examination of the precise real-life situation of the particular child
involved. To apply a pre-determined formula for the sake of certainty, irrespective of
the circumstances, would in fact be contrary to the best interests of the child concerned.

Equally if the ‘paramoutcy phrase’ was spread ‘too thin’ then it risked becoming empty rhetoric. Its application cannot mean that the direct or indirect impact on children of any action is enough to oust proper considerations of that action. The court stated that section 28 was not mean as ‘an overbearing and unrealistic trump of other rights’ and is capable of limitation, discussing for example the obligation to return a child to the country of habitual residence in cases of child abduction.

Interestingly the court then stated

Accordingly, the fact that the best interests of the child are paramount does not mean that they are absolute.Like all rights in the Bill of Rights their operation has to take account of their relationship to other rights, which might require that their ambit be limited.

This appears to be linguistic trickery if we take the standard dictionary meaning of ‘paramount’ as ‘supreme’ or ‘more important than anything else’.

The court decided that it was not imprisoning a primary care giver that violated section 28 of the Constitution but rather any such imprisonment that did not give proper consideration to the rights of the children involved. The court suggested the following areas should be considered when dealing with sentencing a primary care giver.

  • To establish whether there will be an impact on a child.
  • To consider independently the child’s best interests.
  • To attach appropriate weight to the child’s best interests.
  • To ensure that the child will be taken care of if the primary caregiver is
    sent to prison.

What is this if not another clear example of a balancing exercise?  The court recognised that of course children have a right and a need to be cared for by their primary care giver – but they also have a right to grow up in a society where criminality is dealt with. To say simply that ‘the child’s welfare is paramount’ without further examination is to risk sacrifice of other hugely important rights that impact on society at large. The parallels with arguments for reporting resections are obvious.

The court eventually decided in this case that  M, her children, the community and the victims who will be repaid from her earnings, benefitted more from her being placed under correctional supervision, rather than imprisonment. 

In the second case the mother was sentenced to four years and nine months imprisonment for causing death by dangerous driving and appealed on the basis that this sentence did not take sufficient account of the Article 8 rights of her young son. This was a serious case of its type and the starting point for sentencing was 8 years. Happily her son had not gone into state care but was being cared for by family members. The Court of Appeal were content that the trial judge had carefully weighed all relevant matters in the scale and his approach was ‘immaculate’ – however they would reduce the sentence from four years 9 months to 3 years 10 months in light of the representations made on the mother’s behalf.

This case therefore does not appear to engage discussion of the paramoutcy principle, other than to cite with approval the South African case discussed above –

Seventh, the likelihood, however, of the interference with family life which is inherent in a sentence of imprisonment being disproportionate is inevitably progressively reduced as the offence is the graver and M v The State SA 2008 232 is again a good example.

Victoria Haigh: When Child Abusers are given moral authority

I first became aware of the case of Victoria Haigh in about 2013, when my concern about the activities of the then MP John Hemming began to mount up.

In 2018 I noticed Victoria Haigh on Twitter. She was supported by a number of self styled campaigners who were linked by their shared belief that the family justice system was fundamentally a tool of misogynistic oppression against women, favouring the rights of violent men over the women they abused.

I have written about this before. I don’t think its true. My position simply is this: the Children Act is the statutory expression of the need to put the welfare of the child first and foremost in any decision making process. Neither sex has the monopoly on bad behaviour and my experience in practice shows a pretty equal split between emotionally abusive behaviour by both mothers and fathers. However, as is unsurprising given mens greater physical strength, they are more likely to be physically aggressive to their partners than women.

The fact that I am insulted, threatened and blocked online pretty equally by Mens Rights Activitists and Female DV campaigners suggests to me that I must be doing something right.

When I questioned the validity of Victoria Haigh as any kind of campaigner against the family courts, given the very clear findings made against her that she had subjected her own child to serious emotional harm, I was met with instant vilification and told to ‘fuck off’ as I was a ‘narc’.

So far, so internet.

I was however extremely alarmed to see this a few weeks later.

https://twitter.com/SVPhillimore/status/1091979776036950016

A lot of people saw this tweet – at least by my standards. My tweets usually get about 300 ‘impressions’ with an ‘engagement rate’ of about 2%. This one (at time of writing February 4th 2019) 2,449 people have seen it and 279 engaged. A rate of 11.3 %. So clearly a topic that attracted more attention than I usually get on line. But no comments. No one replied to say ‘well, that looks a bit worrying.’ Silence.

So I asked again. Why the silence? did no one in the DV sector see the obvious problems with affording moral authority to a woman found to be a child abuser? Who had been fairly tried and rightly punished by the legal system? Did anyone think that this was the way to work to achieve necessary change in this area?

Zoe Dronfield replied by simply posting a link to something called The Red Mother: An interview with Victoria Haigh. 

The thrust of this article is immediately apparent from the first paragraph

During the proceedings Victoria reported that her daughter had told her that her father is sexually abusing her. The response of the system was swift and cruel – the girl was taken away from Victoria and her father got sole custody of her. Victoria was accused of coaching the girl and being an emotionally abusive mother (see also this article in the UK Telegraph). Never one to buckle under, she then went public with her case and stressed further investigations. For an alledged breach of a no-contact order (no contact with her daughter that is) Victoria was eventually put on trial and sentenced to 3 years in prison. After her release she moved to France with her youngest daughter (not related to the alledged molester of her older daughter) to re-start her career as horse-trainer.

This sounds shocking. But it is not true. The truth is this. Victoria Haigh was found to have told lies about her ex sexually abusing their daughter. She was found to have tried to make contact with her on a garage forecourt and she was sent to prison for breach of a non-molestation order. She was found, on evidence, to be a child abuser.

See for example:

Doncaster MBC v Haigh, Tune and X [2011] EWHC B16 (Fam) where – very unusually – the LA asked the court to make its judgment public and to name Ms Haigh because of the amount of misleading information that she was putting out into the public domain

Family Law week summarised these proceedings in this way

This case had begun as a private law contact dispute between Victoria Haigh, who was the mother of X and the child’s father, David Tune.  Following a court hearing of this dispute in respect of which Ms Haigh was clearly unhappy, she made allegations that David Tune had sexually assaulted X.  These allegations were duly investigated and at a fact-finding hearing, HHJ Robertshaw had concluded that X had not been abused and that she had been coached by Ms Haigh.  At that hearing, the mother’s stance was not that X had been sexually abused, but rather that X had made these allegations as a reaction to the stressful relationships around her.  The judge disagreed, however, and found that the allegations were false and had originated in the mind of the mother.

The mother refused to accept the findings, despite her stance at the fact-finding hearing.  Her views about the alleged abuse hardened to become a certainty which she expressed dogmatically.  At a subsequent hearing, HHJ Jones concluded that the mother had continued to influence X and to manipulate her feelings whilst in fact ‘placing her own as the priority’.  HHJ Jones concluded that it would be contrary to X’s best interest to live with her mother.  A decision was made that X should reside with her father.  The local authority offered supervised contact between the mother and X but Ms Haigh felt unable to attend and decided she would not see X at all.

The mother’s attention then turned towards a media and internet-based campaign designed to remedy what she claimed was a miscarriage of justice.  Assisted by an Elizabeth Watson, who described herself as a private case investigator, she put a large number of highly critical comments and information about the case and all of the professionals involved into the public domain.  She also contacted the father’s employers and colleagues and parents of children who attended X’s school and falsely alleged to them that Mr Tune was a paedophile.  This was in breach of orders made by the High Court prohibiting the publication of any information that would lead to the identity of the child or any other family members.  On 25 February 2011 Baker J made an order prohibiting the mother and Ms Watson from communicating via the internet, media or otherwise “any information relating to the proceedings under the Children Act concerning X”.

The author of the interview asks

Why are a mother and child punished so severly for simply talking about sexual abuse and saying that it has occured? Why is a woman sentenced to 3 years in prison for saying hello to her own child? And to what extent was this mother surveillanced, by whom and why?

The answers to these questions would have been found easily in the judgment cited above. But she clearly doesn’t think it worth checking any other source than the narrative offered to her by Victoria Haigh.

Victoria Haigh goes on to expressly assert that the findings against her were the result of deliberate corruption, a campaign ‘to cover up the truth’.

They do what they do. The police do not investigate the crimes. If one complains, the complaints are investigated by those one lays the complaint against and one is sent in a spin cycle of chaos. Then it is the complainant or victim or associate of the victim who begins to have court orders put on them! An innocent person can soon become a criminal, just like me! It was all a complete smoke screen to avoid achieving any kind of justice…

My retrial was an overall tactic by the judiciary, police, ministry of justice at the highest level, to shut me down once and for all with their utmost effort of propaganda, blackmail and whatever else they threw at me. I was not going to stay silent therefore they used their well trodden tactic of pulling my reputation to pieces. To discredit a witness is how the criminals defendthemselves. I was the mouthpiece for my child so by shutting me down, my child was shut down too.

I am quite prepared to accept that miscarriages of justice occur. That wrong decisions are made. It is certainly not impossible that Victoria Haigh has been a victim of such a miscarriage of justice, although I note she has not chose to appeal against any of the court judgments made against her. However, when asked WHY she thinks the family court system acted against her in the way it did, she gives this answer. I find this shocking. There is absolutely no evidence from any credible source that this is happening. This is delusional conspiracy theorising of the worst kind.

There is evidence through MOSAC (Mothers of Sexually Abused Children, a Charity) that women are being groomed to have babies and the babies are being ‘won’ in a ‘custody battle’ by the peodophile father. If a paodophile father uses this as a template which according to the patterns we have seen, these men are using, very successfully, the length and breadth of the UK the same tactic applying for contact through these secret courts accusing the mother of alienating them from their child, in most cases they win custody, never get prosecuted and have freedom and the law on their side to rape their own children under complete protection of the State through the court orders they achieve. The mothers in all of these cases are gagged and prevented from having any contact with their children, knowing at the same time their children are not safe from child sexual abuse. It is torture for the child and the mother.

She goes on to describe family lawyers as ‘cowards or paedophiles’.

This is deeply worrying and depressing. I do not doubt that some men sexually abuse children and women. I do not doubt some men are violent. I do not doubt the family court system could do a better job of dealing with such cases quickly and fairly. I do not doubt that many women find it hard to provide the evidence a court will insist on to prove that they are the victims of coercive or controlling behaviour. I do not doubt that many women fear the family court system I do not doubt that many do not understand what is going on. I do not doubt that many criticisms are well made, and I have made many myself.

Not everything Haigh says in this interview sounds insane. What she says, for example about the women she met in prison strikes a chord. 

The women in prison ALL had crimes committed against them that were much worse than the crimes they had committed to be imprisoned including myself. This again sums up the terrible treatment of women in the UK. “It truly is a terrible country to live in. I looked around at these women and realised instantly that these women needed help and certainly not locking up. Many were products of the UK care system and it goes without saying were sexually abused in care. I was very saddened by what I saw in that place.

But I reject any allegation that the family court system is deliberately set up to oppress women or is part of some ‘baby farm’ for paedophile fathers.

Either lawyers don’t do a good enough job of explaining or the removal  of legal aid has left more and more floundering as litigants in person. When I engage with those who criticise the family justice system and ask them what processes they would have in place other than the testing of allegations by a Judge, I get no answer.

Victoria Haigh is a mother who was found by a variety of judges over the years to have lied and manipulated her daughter into reporting abuse about her father that never happened. She did not appeal against those judgments. They stand as the truth. This is the operation of the rule of law.

So I put the question again to those in the ‘DV Sector’ who stand behind those such as Haigh and promote such narratives that women are being groomed to have babies who will be ‘won’ by a paedophile, that family lawyers are ‘cowards or paedophiles’

  • do you think this is true?
  • If so, where is your evidence that this is true?
  • If you accept you have no evidence, what real or lasting change do you think you will secure by campaigning in this way?
  • To what degree does financial self interest motivate your promotion of such lurid fantasies about the family justice system?

I am sorry to be so cynical as I offer the last question. But when I dare to raise polite inquiry a to the wisdom of promoting Victoria Haigh as a campaigner against the family justice system and I am told to ‘fuck off narc’ by prominent campaigners who have a link to their book or their agent in their Twitter bio, I do wonder. I wonder quite a lot.

EDIT February 5th 2019

I had a conversation with Zoe Dronfield on Twitter. I asked her a number of times if she agreed with Haigh’s narrative that the family courts facilitate the rape of children by handing them over to obvious abusers. She wouldn’t answer. This is a great shame. There is clearly something worthy of discussion here. What has gone so wrong with the system that such delusional beliefs can take such deep roots? Haigh isn’t the only person who thinks and says this, not by a long shot. I have to accept that something ‘feels right’ about this narrative to a significant minority of people and that is very troubling. What can we do about this – if anything?

Maybe nothing. But the answer cannot be to ignore it. Its an inexorable rule of of life that ignoring a problem very rarely makes it go away but it will make others seriously question your motives and your good faith.

EDIT March 9th 2019

This article originally referred to Ms Haigh being found guilty of attempting to abduct her child from the garage forecourt. On Friday 6th March I received an email from Ms Haigh’s lawyers at 10.24am accusing me of making ‘false’ allegations about Ms Haigh and threatening action in defamation. I have agreed to amend ‘attempt to abduct’ for ‘breach of a non molestation order’ as I agree it is important to be accurate about such serious and important matters. However, I assert that to call Ms Haigh a ‘child abuser’ is true and accurate and I do not resile from that description.  I will await with interest any summons to the High Court to defend my position which I shall very happily do.

EDIT July 26th 2021

I make this further edit after Ms Haigh pointed out the existence of an article in The Times in May 2021 that confirms that her daughters father was found to have sent “inappropriate text messages to a 17-year-old female athlete in 2015”. He asked her to send him photographs of her without her clothing and made references to parts of her anatomy. The police took no action and he was allowed to return to coaching but his licence was restricted to allow training only of adult athletes.

This is clearly reprehensible behaviour, particularly as this man was in a position of power over the 17 year old girl. But it is not evidence that the man sexually assaulted his own daughter or that he is a paedophile. I do not see how this article ‘exonerates’ Haigh as is claimed. But I appreciate its important information that would be relevant in court proceedings when allegations about sexual misconduct are made.

Further reading

Judgment of Sir Nicholas Wall August 2011

A note on the Vicky Haigh Case Stowe Family Law August 2011

A cautionary lesson: The Vicky Haigh and Liz Watson judgments Carl Gardener Head of Legal September 2011

When children are pawns: Vicky Haigh and Hampstead 2015 Hoaxstead Research

Links between Victoria Haigh and Sabine McNeill Hoaxstead Research video May 2019