Other thoughts

What’s in a name? Why so many complicated Forms to fill?

This is a post by Sarah Phillimore

On January 24th 2019 I got a text message from a parent I know. She was applying to discharge the care order regarding one of her children. She needed to know what form to use.

The internet (and my site) told her Form C110A. The court staff on the family team of her local court told her it was C100 but when she went to file her application she was told it was a C1. My response was that I thought it was C110A but I would make a plea for confirmation via Twitter.

The responses came quite quickly and were unanimous. It’s Form C110A! However, two of the Big Beasts of the family law scene – Andrew Pack and Lucy Reed – then offered another view. Pack was clear – its a C1. The C110A is only for those wishing to apply for an EPO.

Reed’s suggestion of a C2 was a new runner in an already crowded field. She noted that no form was in fact specified for a discharge of a care order and therefore C2 was the way to go by operation of Part 18 of the rules

Another MKF agreed with Reed. Then another lawyer weighed in for C110A.

My brain was, at this point, leaking slowly from my ears. And I am not a parent trying to apply to discharge a care order against my child.

The frustration of the parent was evident. She was very worried about what form to use to make her application and texted:

They won’t accept it unless the form their demanding is used so do I do it n risk getting chucked out on a fuck up that know is a fuck up of not my choosing?

Another parent on Twitter offered their experiences about when the ‘wrong’ form was used

Not really. Told to file C100 when gone with C2, then accepted C2 with manager’s approval. Then no response (as in application not issued) for a month. When chased told C2 was the wrong form and “has been mislaid” and told to file C100 (so the “wrong” form led to a month’s delay)

— AG (@goyalam) January 25, 2019

This really matters. Filling in the wrong form can lead to your application not being issued or being delayed. Why on earth does it have to be so difficult? What message are we giving to litigants in person? The Government purports to offer some help with its ‘Form Finder’ – but unless you know exactly what you are looking for it seems impossible to find anything. There is no automatic legal aid for applying to discharge a care order. It is available on a means and merits basis; the vast majority of applicants will be going it alone.

Harsh but fair; the parent’s view

I asked the parent if she would describe the impact of this on her. This is what she said:

So you get all your proverbial ducks in a row make the leap to fighting to get your child back and ironically can’t get past the first hurdle… I seem to have really divided the entire family court scene by one question ‘what form do I use to discharge a care order?’ The options are C1, C2, C110A and C100 yeah confused yet?

Its well known us parents get a raw deal, us LiP parents the more brutal end of that raw deal desperate, bewildered, emotional, confused and to be fair is it any wonder when not even the ‘experts’ know what is going on?!

Team A siding with C1 applications are big players like Andrew Pack and the court clerk for filing. Team B siding with C110A are big players like Sarah Phillimore and the Red Book. Team C siding with C2 are the MKF and big players like Lucy Reed. Team D siding with C100 are the actual family court staff who have to accept the form you hand in!

Soooooo now here I sit and I’m not green behind the ears by a long shot, I’m what you can call hardened to the system, I’ve worked as a MKF for 8 years and been a LiP for a lot longer than that – I’ve even set a precedent or two along my journey and I’m confused. Not just a little confused but a lot confused so how does Joe Bloggs your average parent stand a chance, no legal aid no help and apparently none of the professionals knowing either.

How is that fair and respectful of ECHR 6 and 8 and equality and all that shizzle that’s often shouted about but never actually seen to happen in the family court?

I’ve got my younger children with me, I’m not your average emotional train wreck parent that’s often left in the aftermath of court proceedings I’m happy, healthy and enjoying my life , its been years now and the opportunity has arose to get my older child home, its a far stretch from the usual 6 months desperate claw back to regain your child before adoption and placement orders etc you see for these applications – and even I’m sat here thinking what is the point, the systems set for me to fail.

One can’t blame parents that have just faced in their opinion that social workers colluded to lie and steal their child for thinking its done on purpose and it’s all the LA’s fault….obviously it’s not, it is quite transparently truly from no one actually knowing than purposeful prohibition and certainly not anything to do with the LA for once they aren’t to blame!

So who is actually right?? Perhaps given its such an important issue for parents who are nearly 100% without legal aid and LiPs undertaking such applications that it is clarified once and for all so that everyone actually knows what the hell is going on and what is meant to happen step by step!

TBF it really is laughable that it’s split everyone down the lines and this is meant to be a go to app for parents to get kids back – it sums the entire family court circuit up, one big joke from start to finish with no one knowing their ass from their elbow.

Conclusion

https://twitter.com/SVPhillimore/status/1088780873917493248

(un)amusing postscript

The parent has just texted. The court has decided to accept the C110A after all.

We urgently need to do better than this.

Why does everyone hate the family courts? And what – if anything – can we do about it?

The is a post by Sarah Phillimore, with a significant contribution by two parents; a mother who nearly ran and a father who has now lost a relationship with his child. I am very grateful to both commentators. In our various exchanges we have at times doubted each other’s good faith but have persevered to try and have a conversation about something important.

In November 2018 I attended a conference in London where it was asserted very clearly by a speaker, with the enthusiastic assent of almost all the (female) audience, that family courts were tools of misogynistic oppression and decisions were routinely made in favour of violent and abusive men who used accusations of ‘parental alienation’ against the mother as a cloak for their own abuse.

In January 2019 I became aware of Ellie Yarrow Sanders who had ‘gone on the run’ with her 3 year old son just before a ‘significant’ court hearing involving his father’s application for contact. The Transparency Project have written about the background to and media attention around this case.

A petition has been organised to allow the mother to ‘tell her story’; already circulating on the internet is a letter purportedly written by the mother about how she felt she had no choice but to flee the father’s abuse. The Women’s Coalition who support the mother, have referred to the Judge in the case lying and ‘distorting evidence’; it is asserted that the appointment of a guardian for the child necessarily means he is going into State care – which is of course, not true.

They comment further

The Women’s Coalition is launching a counterattack to this public lynching of a wonderful mother, just like in the Samantha Baldwin and Rebecca Minnock cases [see link below]. Both cases engendered much public outrage about judges taking children away from loving mothers and giving them to controlling and abusive fathers. Help make this post go viral too!

The difficulty with this analysis of course is that Rebecca Minnock was found to be ‘manipulative, truculent and attention seeking’ and to have caused emotional harm to her son; he no longer lives with her. Samantha Baldwin gave her children drugs and made false allegations against their father.

So what the Woman’s Coallition says no doubt feels very true to them. But has found not be to true on a number of occasions. Of course, no doubt they will say this is due to the (male) Judges who actively hate women or can’t be bothered to educate themselves about the extent and nature of male violence.

On the other side of the debate of course are the groups such as Fathers 4 Justice who will assert that women are no more than hysterical alienators of children and that the family court system bends over backwards to meet their every spiteful demand.

So what is going on? why are the two sides of the discussion so polarised? Why is our public discourse about this so often hysterical and toxic. so unwilling to admit any shades of grey to a narrative of ‘abusive men’ or ‘lying women’.

I had an exchange recently with one visitor to my site ‘John’ who was commenting on my post “Are the Family Courts biased against men?” Our initial exchange was quite dispiriting. We were both rude to each other. However in some post Christmas miracle, we were both able to reflect on our mutual NY resolution to be more mindful of our language on line and John made the following comment which I set out below in full.

I think it is an articulate distillation of the fundamental issues – which I think boil down essentially to pain, fear and distrust. There is little wonder that father and mothers can end up seeing the same situation in radically different ways; their perception and understanding clouded by pain. But equally there is little doubt the the system itself often operates to make things worse. I have commented before and at length as to why I don’t think the court system is ever the best place to attempt to unpick toxic and failing relationships – but it is our only place and it is surely better than deciding a case on the basis of who can gather more ‘likes’ and clicks on social media.

Like John, I now consider the only way to attempt to counter the persistent and dangerous flow of false information, fear and misunderstanding is to open up the family courts to greater public scrutiny.

EDIT Jan 9th – I have now included an account from a mother who gives the other side of the coin. She nearly ran but didn’t as she was lucky enough to find a lawyer who had the time, patience and ability to explain what was going on and help her anxiety. I agree that this is a very important part of the problem – too often I think lawyers make assumptions about what parents understand or worse, don’t even care that much. A necessary survival ability to ‘switch off’ when dealing with human distress and misery on a daily basis, can if left unchecked develop into a callous lack of concern. If parents are finding it so hard to understand what is going on, those of us who are lawyers have to consider more carefully what part we are playing in this.

John’s story

“Grief fills the room up of my absent child,
Lies in his bed, walks up and down with me,
Puts on his pretty look, repeats his words,
Remembers me of his gracious parts,
Stuffs out his vacant garments with his form”
Shakespeare – King John

The above sonnet will resonate with many readers since this is what it feels like when you are cut off from your child. I would like to start by remembering that Fathers and Children have feelings, as well as mothers.

I can appreciate, that working daily in the Family court system you must encounter many occasions where people have helped to create or compound the problems they now grapple with. I am sure that the courts also have to deal with lots of cases of genuinely vulnerable, at-risk children. However I feel that it is rather too glib and superficial to maintain that the system is not at fault – it’s the people using it! If I may draw an analogue – if I were to design a car that required an expert driver otherwise you would crash, it would not be an adequate defence to maintain that it was the driver’s own fault that they crashed.

In a similar way, surely it is reasonable to expect a court system to provide maximally just and equitable outcomes. Maximum happiness with flawed material, if you like.

Of course I, and many others, tend to view the Family court system through the prism of their own experiences. It makes objectivity tough. I would also expect that the people who tend to contribute to blogs like this, are those that aren’t happy.

I do feel that an important factor is the secrecy surrounding the family court system and the consequential lack of reporting on, and analysis of decisions. It makes gathering accurate metrics and statistics hard. There seems to be a lot of anecdotal evidence, particularly with the rise of the internet and social media. Social media is not the best platform for a sensible debate.

I mentioned earlier that I read somewhere that the great majority of the time in the UK, the child resides with the mother. I honestly can’t cite the source. But unless we also know how many times that decision was contested, or was it by mutual agreement, and the circumstances, then we don’t have all the facts to formally establish bias (or lack of).

Without facts from careful analysis of hundreds of thousands of cases, we are tempted to fall back on ‘belief’ which is often founded on personal experience or on hearsay that confirms our prejudices.

I recognize that the court has a responsibility to protect the interest of the child. I also feel that the court has a responsibility to ensure that both parents are treated equally justly & fairly.
If we take it true though that the child ends up with the mother most of the time, then I feel that it follows that if the court must protect the child, it must also may, to some extent give greater protection to the parent the child now lives with, which could lead to an unequal treatment of resident v non-resident parent.

Another problem is the adversarial system that promotes conflict. It also provides employment and income to a great many people and there is an awful lot of vested interest in continuing that – and there has been for hundreds of years.

Anecdotally, many ‘resident parents’ knowingly engage in false accusations of abuse or in behaviour directed towards parental alienation as a means of exacting revenge against their ex-partner. They are assisted by lawyers who have a vested interest in promoting conflict.

There do not seem to be many instances where that behaviour is punished and reported on. The one I recall reported was a case from 2004. Interference with visitation and blocking of access has certainly been my personal experience. Am I the exception or the rule? Hard to say without statistics.

In my own case, I was disgusted to discover that the court seemed far more willing to accept my ex-wife’s word that I was ‘abusive’, despite their being no evidence, than they were to accept my word that she was interfering with visitation or engaging in alienating behaviour. I can understand why – it’s a lot safer and easier to prevent a dad seeing his kid ‘because he might be abusive’. But for those dads who have honestly done nothing wrong, it can feel like an uphill struggle.

As I alluded to before, the fact that these important decisions are not made by jury, but by a single human being, also is not helpful. I would imagine that the cases are often influenced by reports from social workers, agencies and so forth who are not subject to independent scrutiny.

In an ideal world there would be no divorce. Perhaps co-parenting after divorce just simply does not work.

Sigh. I don’t know. I didn’t file for my divorce, I didn’t ask to lose my child and I didn’t ever abuse my ex-wife in any way. It makes me very sad and occasionally bitter and angry that I have been an unwilling part of a process which I was powerless to stop.

In the end, it is the child that suffers most. I have been forced to move on. There is no point in spending my entire life fighting a battle I cannot win.

I have another child and I can cope with the loss of the first at great personal sorrow.
However my son can never have another father.

The mother’s story – she wanted to run but didn’t

It’s been some years since my decision not to run. I have met and instructed several lawyers since then but not all made me feel like a person and less like a process. This is an important factor in understanding why someone might not be able to trust their lawyer and feel they have no option but to run and we need to talk about this, as it goes hand in hand with misinformation about the family courts.

The law is there to protect but, all too often, a lawyer is seen as working a system instead of working for their client. This is a myth the law needs to work much harder to put right or more people, like Ellie, will feel they have no option but to run.

Although I rarely liked what my lawyer said, I learned to trust that she was working for the best outcome. It wasn’t an automatic trust. She translated the convoluted legalese into language that my permanently fearful self was better able to digest. She deconstructed the law and made it less intimidating, which was key. She understood my irrational fear of social workers yet she did not dismiss it but helped me to see what their role really was instead of the role I had assigned to them in my head of the Childcatcher from Chitty Chitty Bang Bang.

My lawyer remained patient and continually kept me informed every single step of the way, allowing me to process what I didn’t understand, often explaining on a loop. She understood that my exhausted body was permanently flooded with adrenaline, geared for threat and very, very bad at assimilating complex information so she would frequently offer a HUGE dose of calming perspective whenever something had upset me. Before each hearing, she would meet me in a café, so I would not have to go into court on my own. I believed my lawyer would fight my corner.

But what made me want to run? Things changed with pregnancy. It had started subtly enough. I found it difficult to breastfeed. He stood behind me and watched like a hawk- criticising at any given moment. It started when he told me my breast milk was inferior. That I was starving the baby. That the baby was better off having formula because you could see the ingredients on the packet. He was attentive and charming around the Health Visitors but once they had gone, he monitored everything I did, telling me I was useless because I couldn’t get the baby to sleep through the night, I couldn’t keep the house clean, I couldn’t do the most basic things that most new mothers found second nature. My struggles with parenting a newborn, the difficulties with breast feeding, baby blues and exhaustion were all cited as reasons for just how crap I was. I wasn’t a proper mother. Constant digs that I wasn’t coping with what should come naturally for a mother, led to him suggesting that if he didn’t support me, my baby would be taken from me . He told me he would prevent that from happening because he wanted my baby to have a relationship with me – even if I wasn’t a very good mother. I was at rock bottom and believed him, spiralling into an ever increasing mass of inadequacy.

He told me that I was disgusting, that I was no longer attractive and he was doing me a favour by staying with me because on my own, I would end up begging on Oxford Street. It never stopped and I started to believe that the only thing I could do, to keep my child with me, was to get away from a system that seemed hell bent on separating us.

I was too scared to speak to my GP, fearful it might set the child removal wheels in motion. In fact, I was terrified of anyone whose job it was to support and I have heard many women share the exact same fears.
I remember how grateful I was, that he would allow me the chance to be a mother!

I say all this because it worries me that people aren’t getting the help they need. I worry about Ellie and hope she has a lawyer who will take the trouble to understand her reasons for doing what she did and not demonise her.
I hope she has a judge who will understand why a mother might run and who can acknowledge that decisions like this won’t have come easily. I hope the judge asks what made her take the risk? What was going through her mind? What had she been told? What kind of support did she have around her? Which professionals could she trust? What was her relationship like with her lawyer? What was her greatest fear?
All of this even before considering whether her ex was abusive or not.

I don’t believe that many lawyers and judges are fully cognisant of just how imposing and intimidating court can be and how, when faced with the prospect of genuinely believing your child will be removed, how someone might see that their only option was to run.

For a person to have faith in the legal process and the court, the court needs to work harder to show that that faith has been earned and I cannot, hand on heart, say that it has.

In whose best interests? Transgender Children: Choices and Consequences

This is a post by Sarah Phillimore. I am concerned that the decisions by Mr Justice Hayden in Re J [2016] are being overlooked in the ongoing debate about children who want to ‘change genders’, and in particular the role played by the Mermaids organisation. I discuss my unease about what would have happened in Re J if it was decided this year in a talk at the Make More Noise event on July 27th 2019

First disclaimer. I am not a bigot.

It has, and has always been my view from when I was very young, that if consenting adults wished to dress in a particular way, have sex in a particular way or get married to someone they loved who loved them back, that was absolutely their business and no concern of mine, other than to be happy for them that they had the chance to live their best life. As a disabled person I am well aware of those times in my life when I have been denied opportunities, been insulted or attacked for a physical characteristic that I did not ask for and was completely out of my control. I would never knowingly inflict that kind of harm upon another.

But I am also a lawyer. So by training and by temperament I am not interested in what people ‘feel’ about any particular issue. I am interested about what they can prove. What evidence do they bring to the table to support their fears or worries?

Some advice; if you find what I say ‘hateful’ and wish to have me removed from social media or my employment then of course you must take what ever steps you think are appropriate. But please remember I don’t have an employer; I am a self employed sole trader. If you think my words mean I am not fit to be a lawyer, please refer the matter to the Bar Standards Board.

Please also note that I will not agree with you and will use my best efforts to challenge and reject any complaints made.

Second comment. We cannot sacrifice facts for feelings.

In the on-going and harmful ‘debate’ about trans women with intact male bodies in female spaces (such as sports or prisons) we find very clear and horrible illustrations of what happens when people bring feelings to a fact fight; when both sides of the ‘debate’ appear to believe that they are supported by facts and reasons and the other by unreasoning hysteria and bigotry.

While adults may insult others as they wish, provided they don’t step over the line dividing freedom of speech from criminal harassment, I am concerned here about what is being argued on behalf of children. The need for clear and honest debate is particularly important when talking about the ‘rights’ of children to transition and to be supported/encouraged in accessing surgery or medication to do so.

i have no interest in controlling what consenting adults do to other consenting adults and think such attempts to control is a moral wrong, unless and until of course their activities impinge on my ability to live my life. However, as a lawyer who has worked in many years in child protection law, I do have a very keen interest in what adults do to children, often purporting to act in ‘their best interests’ when, to the objective outsider, it seems anything but.

Much of the increasingly anguished ‘debate’ about transitioning is now very clearly focused on children and at what age they could or should be supported to make the ‘decision’ to transition from ‘male’ to ‘female’ or vice versa. This ‘transition’ is often required to be supported by medication or pretty serious surgical intervention. The impact on the child’s body as he/she grows will be serious, often leading to infertility or loss of sexual function.

I have become increasingly concerned about the role played in all of this by the Mermaids organisation.

They describe themselves in this way:

Mermaids is passionate about supporting children, young people, and their families to achieve a happier life in the face of great adversity. We work to raise awareness about gender nonconformity in children and young people amongst professionals and the general public. We campaign for the recognition of gender dysphoria in young people and lobby for improvements in professional services.

The decisions in Re J [2016]

I am worried that the continuing debate and discussion over the role of the Mermaids organisation has overlooked a very important judgment from Mr Justice Hayden in July 2016 – J (A Minor), Re [2016] EWHC 2430 (Fam) (21 October 2016).

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

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

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

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

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

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

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

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

A later judgment in October 2016 dealt with the aftermath of the boy’s removal and how he had settled with his father and to what extent these matters should be in the public domain. That judgment is here: J (A Minor), Re [2016] EWHC 2595 (Fam) (21 October 2016)

What happened after 2016?

Mermaids at the time were highly critical of these judgments and said they would be supporting the mother in a appeal. No application was made to appeal. They showed no humility or understanding in their press release of October 2016, insisting that the courts simply had not understood issues of gender identity. I assert that no one can in good faith make such argument if they had bothered to read the lengthy and careful judgments of Mr Justice Hayden.

Since 2016 Mermaids have continued – in my view – to show no understanding or humility. The current controversy is around a grant to their organisation of £500K by the Lottery Fund which is currently under review and has been the subject of some critical press attention.

Children are – quite rightly in my view – protected as a vulnerable class of people in our legal system. Children below the age of 12 are highly unlikely to be considered to have the requisite maturity and understanding to make significant decisions about their lives that will impact well into adulthood. Even those older children who are ‘Gillick competent‘ may find that their wishes and feelings are not allowed to determine issues of significance; such as the right to refuse surgery.

The accepted wisdom of the majority of child psychologists is that a child under the age of 6 years is probably unable to express any view that does not align with his or her primary care giver. This is a relatively simple matter of stages of cognitive development and pure survival. The older a child gets the more their wishes and feelings carry weight, but they remain unlikely to be ‘determinative’ unless and until they age out of the protected class of ‘child’.

So why are we even entertaining any discussion that a 4 year old is in possession of all the facts and their consequences needed to make a serious decision about whether or not to keep or ‘disdain’ his penis? Particularly when organisations such as Mermaids and their supporters appear to wish to push for wholly regressive and offensive gender stereotyping such as little girls like pink and sparkly things and little boys want to play rough and get dirty. If a little boy wants to play with dolls and wear a dress, why does he have to ‘disdain his penis’ to do that?

What do we know about the implications of medical and surgical intervention for children?

Not only is a young child likely to be unable to grasp the necessary information to make an informed decision about transition, it seems that the adults around him or her do not yet even possess sufficient information to make a safe, informed decision on the child’s behalf. We appear to know more about the impact of puberty blockers on sheep than we do on children. Note comments from the Science Symposium on 18-19 October 2018 at The Tavistock and Portman NHS Foundation Trust, cited below in Further Reading. Grateful thanks to @bettytastic to alerting me to this.

We do know something of the effect of puberty blockers on the brain development of adolescent sheep however. Professor Neil Evans of the Institute of biodiversity in Glasgow reported impairments to several functions, including a sheep’s capacity to find its way through a maze, which persist after stopping puberty blockers. This raises questions about the possible neurological effects of puberty blockers on children’s psychological, social, sexual and cognitive development. Some of Professor Evans’s references are listed below (Robinson et al 2014, Hough et al 2017 a & b).

The consequences of a pathway of surgical and medical intervention are not merely physical of course. Stephen B Levine wrote in 2018 in the journal of Sex and Marital Therapy ‘Informed consent for transgender patients’ reminds us that risk needs to be identified across three categories – the biological, social and psychological. Four specific risks arise in each category.

Biological risks include loss of reproductive capacity, impaired sexual response, shortened life expectancy, Insistence that biological sex can be changed cannot alter the possibility of sex based illness – such as prostate cancer arising. Social risks include emotional distancing from family members, and ‘a greatly diminished pool of people who are willing to sustain an intimate and loving relationship’. Significant psychological risks involve deflection of necessary personal development challenges, inauthenticity and demoralisation – when changing your body does not bring about the desired changes to the way you ‘feel’.

Of course, the existence of risk does not mean that one should never embark upon a risky endeavour. It may well be that the benefits outweigh the possible disbenefits to a significant degree and the risk is well worth taking. But that conclusion cannot be reached without clear eyed and dispassionate unpicking of the risks AND benefits.

How can the ‘no debate’ platform and unquestioning acceptance of any child’s expressed wish to ‘transition’ ever reflect the serious ethical duty of medical professionals to be sure their child patient has offered informed consent?

To what extent are adult influences driving children?

Julian Vigo independent scholar, filmmaker and activist who specializes in anthropology, technology, and political philosophy, wrote for Forbes in December 2018 about discussions with Mermaids in 2013 and the concern noted then about what might lie behind adult desires for their chid to ‘transition’ – to help the adult ‘fit in’.

I spoke to Linda at Mermaids, a support group in London formed in 1995 by parents of transgendered children. She told me that this group supports parents who have children who do not ‘fit in’ with ‘gender roles.’ I ask what she meant exactly by ‘fitting in’ and Linda explains, ‘If you are a little girl who behaves like a boy, you will want to have your hair short, to play with the boys. Even at play group they will be different…they will be picked on and those are the problems.’ I tell Linda that many little girls will have short hair and play with boys—I was one of those little girls. She says, ‘I have known a lot of girls in my time and they don’t like rough and tumble..they don’t like playing with boys. They like to play with dolls, dressing up, playing in the Wendy House, to grow their hair…’ Linda emphasises that it is important that these children ‘fit in,’ a phrase she often repeats in our discussion. Is this what transitioning for some trans adults is about? Is this the ‘support’ that parents are receiving in order to understand ‘gender roles’?

Professor Michele Moore makes some similar points and her talk is linked to below.

Conclusions

I will never make any apology for raising and discussing these issues. As a disabled child who could not be ‘fixed’ it became clear to me in my teens that I had a choice; to kill myself or to try and live the best life I could in the body I had. I had virtually no support from the adults around me in this process; the 1970s and 1980s, when I grew up, were much less enlightened times than now and I am glad these issues can be more freely raised.

I wish for all the chance to the live their best life and to live it freely, with love and respect from their fellow humans. We should all do what we can to allow this to happen. If we can’t support it, we should step back and keep quiet.

However, we need to tread very carefully when it comes to little children, who are wholly at the mercy of the decisions made on their behalf by the adults caring for them. Any decision which has the consequence of setting their bodies and hence their lives on a particular path is one that must be taken carefully, honestly and in possession of all the facts. It should never be about a way of assuaging the pain or mental distress of any adult.

None of this means it is impossible for a four year old to have clear and decided views about what he or she wants to do with his or her body, or that it would be automatically wrong to act on those views. But it is – by simple matter of that child’s very young age and compromised cognition – highly unlikely that the vast majority of four year olds can make informed decisions about something serious – such as surgery. We need to be very, very careful about the extent to which adult hopes and dreams are pinned on children.

If anyone in the Mermaids organisation cannot read the judgments of Hayden J and feel appropriate remorse for their role in contributing to the significant harm caused to a 4 year old child, they are not fit to receive even 50 pence of public money, let alone £500K.

Edit 26th December 3.40pm

I am really grateful for the mostly courteous expressions of interest in this post. In particular, the comments from the parent of a trans child. I agree with her that this was not a case where anyone (so far as I know) was advocating for immediate surgery on a 4 year old. I remain very concerned about what the logical outcome for the child would have been if no one had intervened to disrupt the ‘disdain the penis’ narrative. But I accept that surgery and/or medication are not usually on the horizon until the child approaches puberty. I also accept – as did Hayden J – that there are children who will need the kind of support and intervention advocated by Mermaids. But to force ‘transition’ on a child who didn’t want it is as every much a horrible tragedy as it is to deny a child help and support they desperately need. The only way – I think – out and through these difficult and emotional questions is by adherence to facts and rational debate about them.

Second Edit 26th December 5.55pm

A reader comments that it is ‘absurd’ to say that re J highlights anything about Mermaids. I refer to this article in the Guardian which confirms that Mermaids supported the mother in court. I stand by my assertion that the judgment in Re J reveals very worrying things about Mermaids’ operation and assumptions. ‘To the man with a hammer – everything is a nail’.

Third Edit 1st January 2019

I have further edited this article to include references to some interesting papers and online talks which I have discovered in conversation with others on line. i remain profoundly grateful for the opportunity to take part in these kind of discussions.

Why its time to open up the Family Courts

On Saturday 3rd November I attended a workshop at UWE organised by journalist Louise Tickle as part of her project to investigate opening up the family courts and recalibrate the balance between privacy and scrutiny. Disclaimer: both Louise and I are members of The Transparency Project, so our interest in and commitment to further openness of the family courts is obvious and I make no secret of my bias in favour of this happening as soon as possible.

I have undergone an evolution in my views since 2011, when I first took up any kind of campaigning role. Whilst I initially parroted the phrase ‘private not secret’ and worried about the impact on children of increased scrutiny, my exposure over the years to obvious examples of where the system was failing has changed my views.

This blog post is an attempt to outline what I think are the most important reasons for opening up the family courts and what we can do about the real and serious fears of many that we are simply encouraging a salacious and irresponsible Press to make free with a family’s misery.

Have a look at the Twitter hashtag #openfamilycourt for some contemporaneous tweeting about what happened at the workshop.

Justice must be seen to be done

This is the simple, basic and big one. As David Burrows has pointed out (see ‘Further Reading’ below), family lawyers look through the wrong end of the telescope, assuming that family cases must be held in private from the outset when in fact it is the ‘open court principle’ that is the default position. Issues of permissible privacy and statutory limitation, especially regarding children can be discussed from that starting point.

As far as is possible we should strive to make sure that the public can access the courts and understand the system of justice that operates in their name. It is the fundamental principle underpinning our entire system of justice and for too long the family court system has been allowed to develop along tracks which lead it far away.

Lack of scrutiny can have terrible consequences.

https://twitter.com/SVPhillimore/status/1058733467033370624

It is very clear to me – not just from this workshop, but from attempts to engage with a wide range of people over many years – that most of us are just stuck on broadcast when it comes to issues that cause us particular pain. Our view of the situation narrows to encompass only that which has hurt us. This is entirely understandable and I don’t criticise anyone for it unless and until they demonstrate to me that their minds are closed to any possibility that their views may sensibly be challenged.

This single issue focus is often a massive block to any sensible discussion about how we move forward and it is made far worse by the obstacles the current family justice system puts in the way of understanding and scrutiny. I don’t pretend that opening the courts would be a miracle cure for the single issue campaigner – but it would allow me more authority when I say that their perception or their understanding is wrong; THIS is what happened.

I have often wondered why the lawyers are so absent from the parents’ narratives on social media. I am now beginning to understand exactly why. What was telling from many of the parents at the workshop was that the lack of public scrutiny meant that no one really understood the system they were entering, they felt powerless to engage with or even challenge their own lawyer and the power imbalance was thus magnified. A system of parent advocates could be a way forward.

Lack of scrutiny allows stale cliche to become unchallenged truth

There are stock phrases and belief systems that influence the family justice system. Many – in my view – are based on imperfect understanding of existing research, wishful thinking or used as a quick get away from any attempt to actually think and worry about a situation that may actually be incapable of resolution, so lets just get rid of it quickly. Lack of scrutiny or outside challenge means they have been allowed to harden over the years into inescapable ‘truth’.

We are doing this in the child’s best interests, which are paramount.

The most stale and dangerous of them all. It needs unpicking. First how do we find out what is in the child’s best interests and what does ‘paramountcy’ actually mean in the context of the family and wider community?

Children in my cases roughly fall into two camps. They are very young and they can’t speak. We thus find their ‘wishes and feelings’ reported as ‘If Baby X could speak I am sure he would say he would like a warm loving home!’. Or they are frightened and angry teenagers who are desperate for an adult to take control and keep them safe, but find instead that the adults tip toe around them ‘respecting’ their autonomy – until of course the teenager says or does something the adult doesn’t like, in which case all that Gillick competence dries up and blows away.

I am fed up of being involved in cases where children are separately represented but who won’t meet with their lawyers and give instructions. Not only is this a massive drain on the public purse but it also means we aren’t listening to what these children are telling us loud and clear. Be the adult. Make decisions to keep me safe. There is a limit to the extent that children’s views can inform us of their best interests. They lack perspective and understanding about how their choices today can impact their lives down the line. And most of them, on some level, understand that – and crave an adult who cares enough to take that burden of responsibility away.

What is in a ‘child’s best interests’ is then perhaps more accurately rendered as ‘what do I the adult, with my preconceptions, bias, or dangerously high workload, think I can get away with recommending on the basis that its in the child’s best interests?’

Even more perniciously, is the fact that a child’s ‘best interests’ has become narrowed to seeing that child entire and alone in the universe – divorced from family, friends, community etc. The fact that it might be in a the child’s long term best interests to remain links with his family is overshadowed by the immediate ‘best interests’ to be removed from a potentially harmful situation. We see this in the cry of the social worker ‘I am not here for you! I am here for YOUR CHILD’. We see this in the words of the court – Lord Kerr in B (A Child) [2009]

All consideration of the importance of parenthood in private law disputes about residence must be firmly rooted in an examination of what is in the child’s best interests. This is the paramount consideration. It is only as a contributor to the child’s welfare that parenthood assumes any significance.In common with all other factors bearing on what is in the best interests of the child, it must be examined for its potential to fulfil that aim.

i think this is wrong, is going too far, is using section 1 of the CA as a vehicle to drive us far away from what is actually in the best interests of children – to have a safe, permanent home and good relationships with those who love them and who share their identity. Children are not born as a blank slate to be easily picked up and dropped into a new adopted family.

I could be entirely wrong about all of this. But we are not able to talk about it, openly and honestly. It is worth noting that all those at the workshop echoed the concerns expressed by the (now) President of the Family Division in 2017 – that there is no feedback loop in the system. Judges aren’t routinely told about outcomes for children. Greater scrutiny and openness can only improve this dire state of affairs.

But what about the risks to children of increased openness?

I accept that this is a real and serious fear and was certainly recognised by those at the workshop. What I don’t accept however is that debate stops at mere recitation of this risk. If reliance is placed on any assumption that open family courts will harm children then I am going to need to see a lot more research that goes beyond a small and self selecting group. The 2014 report from NYAS/ALC involved only 11 children, for example. Earlier research in 2010 asked only 51 children.

I am going to demand actual analysis of the harm that will befall a child if family proceedings are reported but the name of the child is kept out of it.

It seems to me that the reality is that those in the child’s locality will already be well aware that there have been some sort of legal proceedings; those outside the child’s locality won’t care. So long as the child’s name is kept out of it, so no digital footprint is created that might lead to unpleasant shocks in years to come, what actually is the harm that is caused? If the only harm that is identified is some degree of embarrassment, can that always and automatically be enough to over turn the fundamental principle of open justice?

Maybe I am wrong about this too. But whatever your interpretation of current research, there is never any excuse for Judges and lawyers then to fail to apply the relevant law and to carry out the necessary balancing act between Articles 8 and 10. The recent difficulties faced by Louise Tickle in attempting to persuade a Judge to relax a reporting restrictions order is a clear example of this.

https://twitter.com/SVPhillimore/status/1058736055774576640

Conclusions

So what do I think the next steps should be? If my pious arguments about legal principle and open justice don’t move you, maybe this will. The practical reality is – now that every one is a micro publisher, with an audience of potentially millions around the world – that the genie is already out of the bottle with regard to information circulating on social media and we either take control of this or we let it drown us. What do I think the next steps should be?

Louise continues with her investigations
Some one commissions fresh research into the likely impact of open courts on children, with a sample size greater than 11.
Proper analysis and investigation of what other jurisidictions are doing and how they protect children – see article below in Further Reading where I set out what is being done in some US states
Proper backing and funding to a system for parent advocates – to help parents bridge the gap of understanding and enable them to engage better with their lawyers.
A form of accreditation for journalists who wish to report on family cases so we reduce the risk of the current salacious and irresponsible ‘cherry picking’ only the ‘sexy’ information to report, which causes such justifiable distrust in journalism as a profession.

Parent Advocates – a necessary bridge between the parent and the professional

I am grateful for this guest post from @DVHurts who discussed the notion of ‘parent advocates’ explored at the recent conference on 29th October 2018 organised by the Family Rights Group. This is something I have long thought would be a very useful addition to the system; such thoughts were cemented by discussions on November 3rd at a workshop organised by journalist Louise Tickle about opening up the family court – again what is repeated by parents is that they need help to understand the process and to get the best out of their lawyers.

My position was clear and inflexible. I didn’t want counsellors working out the personal problems on my payroll. I wanted at least five years of sobriety, regardless of how much education they had. They had to have been no breach of sobriety to grasp the spiritual nature of recovery and to ensure that the focus would stay on the client and not shift to themselves

For a little light reading over the last week I have been browsing through Slaying the Dragon, The History of Addiction Treatment and Recovery in America, by William L .White. By grace, I do not have addiction problems myself , but I am interested in the treatment of addiction. The above quote originated from one of the addiction counsellors in the treatment centre, he was himself an alcoholic in good recovery. He was employed by the facility , alongside others in recovery and paid the same as other staff members in similar grades of work. The care team is described as inter-disciplinary not multi disciplinary.

Also this week I attended this week Your Family Your Voice Alliance conference: Tackling the care crisis-Families Driving Reform run by the Family Rights Group I came away with hope in my heart, that change is not only possible but will happen. the conference outlined one of the catalysts for change should be the training and employment of parent advocates. Just as a recovered alcoholic has been shown by research to be the most effective person to lead another into sobriety, a parent who has been through the system, will as an expert through experience, be able to come alongside a parent and guide them through.

The conference was opened by the Your Family Your Voice Co- Chair and a Family Rights Group trustee Angela Frazer -Wicks, who like me is a birth parent. She has campaigned and worked with local authorities and is an excellent example of how a dedicated parent can work within the system.

There were a number of topics covered in the conference, but in this post I am just want to concentrate on parent advocacy. I am birth parent and this therefore is a personal view. A large part of my journey and recovery into wellness has been due to peer support and so I am an enthusiast. One of the primary factors was not realising that I was not the only person in the universe ploughing through the muck.The other has been my situation is not hopeless, there are tools to use , that others have done so in the past and I wanted what they had and I could get it when I had put the work in. They were willing to get down into the hole I found myself and show me the way out. During this process of change I also had help on a 1:1 basis and having the ability to call on someone who understood the situation from their own experience has been key. By putting in the work, which includes looking into how your family ended up in the situation in the first place , which absolutely must not be a shaming exercise, (shame is negative as I explored here) but a realistic evaluation, combined with solutions.

What is an advocate?

The dictionary definition relates more to a lawyer, one who puts your case in a court of law. So normally a well educated professional. Yet peer advocates who are now widely used within mental health services do not fulfil this role. They are more a bridge between the service user and the professional, when the service user does not have the capacity to understand , whether through mental health problems or simply fear.

There is another word paraclete, which originates from late Greek, which also means advocate and mediator. I understand lawyers can be both, however I think I am trying to look at a different role, with boundaries that are there but less rigid than between a lawyer and a client. It actually is more helpful as a definition, as it explains that a paraclete is one who is a comforter as well as speaking on you behalf. In Christianity the Holy Spirit is referred as the paraclete, the one who speaks to God on your behalf when you don’t know what to say and signposts you in the right direction. He is always there to call on and if you listen, you will be looked after. It is a personalised “service”.I understand, that some won’t like the religious illustration, but it is most effective way, I can personally explain what I see the role of the advocate to be.

Parent advocates, alongside other measures instigated by parents in New York City have reduced children in out of home placements by 82% since 1992. There are still approximately 100 parent advocates in New York today. David Tobias, Ph.D. who as Executive director of the Child Welfare Fund, was at the coalface of the change to parents being seen as partners in the child protection system.In his address to conference , he stressed that not every parent could become an advocate and there was extensive training before they were accredited as advocates. This goes back to the quote at the top of this post. Parent advocates , would have to be selected from those that have the necessary maturity and qualities that can act as that bridge. They would not be a disruptive force, sure they would have their own bias, as we all do but would have worked through that , in order to put the family they are supporting first. They would need regular supervision, just as counsellors do.

When questioned, David said we need to get a curriculum together to train advocates. That sounds easy enough as it could draw from mental health advocacy training. So what else is stopping us? Money basically and to a lesser extent geography, as of course we are talking about a country not a city.

The other problem that arose in addiction centres is the professionals accepting the recovered addicts as equals in a team, the hierarchy being flattened was not universally popular, though these problems ironed over time.

We have been discussing this a number of years now, it needs to become a reality, the evidence is there, that parent advocacy works and the system is sinking from all perspectives, care figures rocketing ,parents broken, courts over stretched, social workers stressed and leaving the profession.

Last but not least the system is failing children. It could be started, it could be evaluated,what financial cost would there be of a number of parent advocates per area in relation to the millions spent on proceedings and looked after care at the moment?

There has been a discussion on Twitter and I think this is an excellent suggestion:

Perhaps the same approach that Louise has taken with @openfamilycourt: private grant givers. There's about 8,000 grant-giving orgs in the UK.

— perditioning (@perditioning1) November 3, 2018

I fought the law – what are the implications of section 12 of the Administration of Justice Act?

I was asked by the journalist Louise Tickle to consider whether or not she would be in contempt of court if she published a blog post detailing her frustrations with the way the family court had dealt with a recent application made by a number of journalists.

In brief, the journalists attended a final hearing which had come about due to a decision made by the Court of Appeal that has already been reported and is in the pubic domain. That judgement names the relevant LA and social worker and provides personal detail about the mother, including her ethnicity and the date of birth of her child. What the journalists wanted to do was to report on the final hearing but also link in their reporting to this published judgment as otherwise it was difficult to understand how the case had taken the shape it had.

The Judge at the final hearing was not minded to permit publication of anything that might identify the ethnicity of the mother nor the identities of any professional parties – which poses the immediate problem that no reference could then be made to the prior judgment already published which contained that information.

Louise was unhappy with this outcome and I had to agree it was deeply unsatisfactory. I have not held back criticising journalists who refuse to link to judgments or even read them and end up publishing something partial and inaccurate. Therefore I am troubled to be told that journalists who wished to report by reference to the actual facts already in the public domain were being told that they may not – and even worse, that their right to freedom of expression from Article 10 of the ECHR, did not appear to be given any proper consideration by the Judge or the other advocates.

I read Louise’s proposed blog post and ran this past my understanding of the consequences that followed from applying section 12 of the Administration of Justice Act. My analysis of the law follows below.

I don’t think Louise is going to be hauled before a Judge and found in contempt of court for publishing her blog. But I didn’t feel that I could offer robustly confident advice that she would not. It is clear that each case will turn on its own facts and thus there is very little guidance for the lay person or lawyer who doesn’t deal with such matters on a regular basis – which I imagine is all of us.

For so long the family court have operated without public scrutiny that I do not think it is common place for Judges to be asked to consider relaxing the requirements of section12 AJA in general run of the mill family cases.

I hope I am right about all this. But I am not sure. It seems a rather unsatisfactory state of affairs that public comment about the family justice system should operate under such a climate of fear. Being found in contempt of court is a serious business; one possible punishment is the loss of your liberty. When facing serious consequences, the law that imposes them needs to be clear and it needs to be accessible. Lawyers need to understand and apply the necessary balancing exercise between Articles 8 and 10. How many do?

I do not think that our law about reporting matters in the family court is clear, accessible or consistently applied and .I will follow developments here with interest. Louise has launched a crowdfunder to raise the costs of her proposed appeal.

My view of the law.

Section 12 of the Administration of Justice Act 1960 forbids the publication of information relating to proceedings under the Children Act 1989 or the Adoption Act 2002. There is no time limit so the prohibition operates even after proceedings end.

Sub section (2) of the AJA exempts ‘the publication of the text or a summary of the whole or part of an order made by a court sitting in private’ UNLESS the court expressly prohibits the publication. There is no other exemption or explanation of terms offered by the statute.
We therefore need to look to case law and other general principles to understand what is meant by ‘information’.

With regard to publication, something is ‘published’ whenever it would be considered published according to the law of defamation UNLESS someone is communicating information to a professional in order to protect a child. A blog post published on the internet would thus clearly meet the definition of publication and by publishing a general blog, Ms Tickle could not avail herself of the defence that she is communicating to a professional.

Publication of “the nature of the dispute”, which is permissible, and publication of even summaries of the evidence, which is not.

What is meant by ‘information’? Munby J (as he then was) considered this in Re: B (A Child) (Disclosure) [2004] 2 FLR 142. He identified classes of information falling into this category as likely to be [para 66] :

accounts of what has gone on in front of the judge sitting in private
documents such as affidavits, witness statements, reports, position statements, skeleton arguments or other documents filed in the proceedings,
Transcripts or notes of the evidence or submissions, and transcripts or notes of the judgment. (I emphasise that this list is not necessarily exhaustive.)… likewise…extracts or quotations from such documents…also the publication of summaries

The identity of witnesses in care proceedings is not protected by section 12 and if any witness does want to remain anonymous they will have to convince the court that their need for anonymity was more important than the need for openness.

Section 12 does not prevent publication

of the fact that proceedings are happening, or
Identification of the parties or even of the ward himself. EDIT BUT PLEASE NOTE THAT s97 of the Children Act forbids naming children in current care proceedings.
or the comings and goings of the parties and witnesses,
or incidents taking place outside the court or indeed within the precincts of the court but outside the room in which the judge is conducting the proceedings.

However. at para 77 Munby J poses his final question ‘the extent to which section 12 prohibits discussion of the details of a case’. It is likely to be this question that is of most interest to Ms Tickle. He found he was assisted by Wilson J’s analysis in X v Dempster. There the question (see at p 896) was whether there was a breach of section 12 by publishing the words:
“Says a friend of [the mother]: “She has been portrayed as a bad mother who is unfit to look after her children. Nothing could be further from the truth. She is wonderful to [them] and they love her. She wants custody of [them] and we will see what happens in court”.”

Wilson J commented:

I am satisfied that the reference to the portrayal of the mother in the proceedings as a bad mother went far beyond a description of the nature of the dispute and reached deeply into the substance of the matters which the court has closed its doors to consider. If the reference could successfully be finessed as a legitimate identification of the nature of the dispute, the privacy of the proceedings in the interests of the child would be not just appropriately circumscribed but gravely invaded.

Munby J agreed with this observation and concluded:

Every case will, in the final analysis, turn on its own particular facts. The circumstances of the human condition, and thus of litigation, being infinitely various, it is quite impossible to define in abstract or purely formal terms where precisely the line is to be drawn. Wilson J’s discussion in X v Dempster, if I may respectfully say so, comes as close as anyone is likely to be able to illuminating the essential distinction between publication of “the nature of the dispute”, which is permissible, and publication of even summaries of the evidence, which is not.

Consideration of the case law when applied to Ms Tickle’s proposed blog

For a lawyer asked to give advice, the heart sinks upon encountering the phrase ‘every case will, in the final analysis, turn on its own particular facts’. This clearly makes it difficult to offer firm advice.

It is my view that the thrust of the blog post is very clearly to highlight Ms Tickle’s understandable frustration with what seems like a wholly inadequate approach by the court to the necessary balancing exercise of ECHR Articles 8 and 10. I do not think that anything she proposes to publish will fall foul of the distinction identified in X v Dempster. The ‘dispute’ which she wishes to highlight is in fact removed from the actual facts of the care/placement proceedings before the court and is a dispute about an ancillary matter; the relaxation or otherwise of reporting restrictions given that risk (I assume) of jigsaw identification once any reporting of this matter is linked to an earlier Appeal Court decision already in the public domain.

I must stress to Ms Tickle that in offering my opinion as I do, cannot be seen as any kind of guarantee that she would NOT face proceedings for contempt arising out of her blog post. It may be that my opinion is not shared by a Judge hearing this matter. However, I reflect upon the fact that she has clearly taken great care to strip any identifying details from the blog. In my view it is unlikely that any such proceedings would be bought; I would consider them wholly disproportionate in all the circumstances. In my view, the LA is the only party likely to consider such action and I would hope they have better things on which to spend their time and money.

I have mainly stopped screaming; the imbalance between support and intervention.

Thanks to this guest post from a parent who wishes to remain anonymous.

I have mainly stopped screaming, I screamed a lot at first at the injustice of it all and the pain of separation. Today though I am suppressing an internal scream, the anguish now being punched out onto my keyboard.

I answered a strange mobile number this afternoon, I don’t normally but is just as well, because my son had borrowed his neighbours phone, to contact me. Could he have some money please a fiver would do? In truth I had been waiting for this call and this is why:

Over a month ago a letter was opened and ignored by him, it was telling him he had to apply for universal credit as income support had finished. He is at college, and has been offered a job and is just waiting to start it, for anyone who wishes to judge. My son has a communication disorder, so severe that he reached the criteria for a special school and he had been statemented at 7 years old. He is a care leaver and through circumstances he was placed into a flat by himself on leaving care. Except he was not supposed to be on his own, his EHCP stated that his was to receive 20 hours of support a week, via employing support workers . It hasn’t happened, not one single solitary hour , and because he is over 18 it is apparently none of my business. He does have some limited help from the pathway team and I am not criticising individuals. I spent hours in meetings before he left care making sure there was a workable transition plan in place. For what?

To apply for Universal Credit or to use any Government on line service you first have prove your identity. Now I have tried this very recently and nearly threw my laptop out of the window. Despite having input 3 bank cards and my driving licence, Government Verify via the Post Office still refused to recognise me and I am signed up to the electoral register, get post etc. In fact Verify has a failure rate of over 50% https://www.bbc.co.uk/news/uk-politics-41642044. So what chance does a care leaver , let alone one with learning difficulties actually have of managing this transition onto universal credit by themselves.

My son also did not understand that if a standing order bounces , you quickly rack up overdraft charges. So before long having no money actually turns into mounting debt. To some small extent he is lucky, we still have a relationship and I know how to cope. Before this change to universal credit he was actually managing money very well, as I told him to set himself a weekly budget and only use cash. Many care leavers lose their links to family members and if no one teaches them about financial matters how are they supposed to know?

The child protection system to me is like a three humped camel (bear with me) , the first hump consists of pre proceedings, this hump is too little and can be non functional, the third hump is after the young person leaves proceedings, this is much the same as the first. The middle hump, is enormous and bloated , it consumes all the nourishment that should be in the other humps. It shouldn’t be there as it unbalances the camel and makes it topple over. We know that the system is teetering, someone please listen, for the sake of the young people like my son who are being failed by a gross imbalance between support and intervention.

Garbage In: Garbage Out? The use of predictive algorithms in decisions about child protection

Machine learning is becoming a methodological substrate for knowledge and action. But machine learning is not ethically neutral. It is skewed by data and obfuscated by nature…

Dan McQuillan ‘People’s Councils for Ethical Machine Learning’

The use of Artificial Intelligence (‘AI’) and relying on algorithms to determine what children are at risk of harm have been in the news of late. The word ‘algorithm’ is an old word; imported into English from the name of a ninth century mathematician called al-Khwarizmi. Originally it meant simply what is now called the ‘Arabic’ system of numbers (as opposed to Roman numerals’) but later it took on a more particular meaning and is now defined as ‘a process or set of rules to be followed in calculations or other problem-solving operations, especially by a computer’.

James Hind describes AI in this way:

It’s the great fashion in recent years that everyone gets into AI, which usually means either they have something that automates a system, or it is a pattern recognition tool that pulls conclusions out of big data fed to a network, which acts on the conclusion….There is an obsession with big data, which always has to be cleaned up by low paid humans in places like India to be useable in a pattern recognition system. These pattern recognition systems such as neural networks operate according to hundreds and thousands of data points, building up through statistics a model upon which conclusions and decisions are made. These models and processes are so complex that not even the designers know how they come to their conclusions, what is called a black box situation.

A positive case is made for better and more efficient identification of children who are most at need as early as possible. In the context of austerity and reduced spending on services such early identification is necessary in order to prevent harm to children’s development. Early identification could also help children avoid more intensive and intrusive child protection services – the end result of which may be removal from their families. There is also a view that decisions about child protection can be too subjective – it can only be a good thing to have some more ‘objective science’ about such important and often life changing decisions.

But there are many who have voiced serious concerns about the efficacy and assumed benign consequences of using artificial intelligence to determine if children are at risk.

The history of predictive analytics in child protection – Allegheny County

Discussions about child protection have long centred on the debate about what is better – removing children quickly from risk or trying to support families manage better? This discussion has gradually enlarged to consider how we can best identify families which are most at risk and make sure that increasingly scarce services are targeted effectively.

A ‘predictive analytics algorithm’ is basically a sophisticated kind of pattern recognition, commonly used in credit reports and automated buying and selling in financial markets. Its application to decisions about risk in child protection services is not a ‘new thing’ but its applications to date have been fairly limited.

The social scientists, Emily Putnam-Hornstein, of the University of Southern California, and Rhema Vaithianathan, of Auckland University of Technology in New Zealand were asked to help investigate how predictive analytics could improve the handling of maltreatment allegations in the USA.

Allegheny County in the southwest of the U.S. state of Pennsylvania (with a population of 1,225,365 in 2016) experienced a tragic series of children dying after being ‘screened out’ as low risk by human call handlers dealing with telephone referrals about children who the caller worried were being mistreated. In 2016 Allegheny County became the first jurisdiction anywhere in the world to attempt to use a ‘predictive-analytics algorithm’ to try and do a better job of identifying families most in need of intervention. 76,964 allegations of maltreatment made between April 2010 and April 2014 were used as the basis of the algorithm.

What’s the problem?

The New York Times commented that the use of the algorithm appeared to be having a positive impact on child protection in Allegheny County:

In December, 16 months after the Allegheny Family Screening Tool was first used, Cherna’s team shared preliminary data with me on how the predictive-analytics program was affecting screening decisions. So far, they had found that black and white families were being treated more consistently, based on their risk scores, than they were before the program’s introduction. And the percentage of low-risk cases being recommended for investigation had dropped — from nearly half, in the years before the program began, to around one-third. That meant caseworkers were spending less time investigating well-functioning families, who in turn were not being hassled by an intrusive government agency. At the same time, high-risk calls were being screened in more often. Not by much — just a few percentage points. But in the world of child welfare, that represented progress.

However It is important to note that the algorithm used in Allegheny County was to help to decide who got a home visit – NOT to make far more intrusive decisions about removing a child.

Follow the money

Another important and positive distinction is that the workings of the algorithm in Allegheny County are public and transparent; the local community are involved and able to ask questions. Dan McQuillan commented in May 2018 about the repercussions of imposing ‘machine based learning’ and possible ways of challenging it via ‘People’s Councils’:

Unconstrained machine learning enables and delimits our knowledge of the world in particular ways: the abstractions and operations of machine learning produce a “view from above” whose consequences for both ethics and legality parallel the dilemmas of drone warfare. The family of machine learning methods is not somehow inherently bad or dangerous, nor does implementing them signal any intent to cause harm. Nevertheless, the machine learning assemblage produces a targeting gaze whose algorithms obfuscate the legality of its judgments, and whose iterations threaten to create both specific injustices and broader states of exception. Given the urgent need to provide some kind of balance before machine learning becomes embedded everywhere, this article proposes people’s councils as a way to contest machinic judgments and reassert openness and discourse.

When matters are not discussed openly and transparently, the concerns increase. As the New York Times commented, secrecy around algorithms marketed and guarded by private profit making firms raise very serious questions:

That’s a chief objection lodged against two Florida companies: Eckerd Connects, a nonprofit, and its for-profit partner, MindShare Technology. Their predictive-analytics package, called Rapid Safety Feedback, is now being used, the companies say, by child-welfare agencies in Connecticut, Louisiana, Maine, Oklahoma and Tennessee. Early last month, the Illinois Department of Children and Family Services announced that it would stop using the program, for which it had already been billed $366,000 — in part because Eckerd and MindShare refused to reveal details about what goes into their formula, even after the deaths of children whose cases had not been flagged as high risk.

It is very disturbing to read that Hackney rejected a recent FOI request about its screening profile on this basis:

London Borough of Hackney is working with Xantura as a development
partner. Because of this, we believe that it would be damaging to
Xantura’s commercial interests to have the financial details of our
agreement made public. We believe that the public benefit of knowing the
financial details is in this case outweighed by the need to protect their
interests and, by extension, those of Hackney in developing the project.
We therefore exempt this part of your request under Section 43 of the
Freedom of Information Act.

It is not simply concerns about where the money goes. There are serious worries about how data is collected and analysed and what the repercussions could be in taking predictive analytics into fields far beyond simply call screening.

Political scientist and technologist Virginia Eubanks argues that automated decision making has far reaching consequences, particularly for the poor. Louise Russell-Prywata commented on reviewing Eubanks work:

The story of Indiana’s welfare reform contains all the key elements of an automation bogeyman: an explicit aim to reduce costs and move people off benefits; a whiff of dodginess about the award process for a $1.3 billion contract to privatise a state service; widespread tech failure upon implementation; the inability to effectively hold the corporate contractor to account for this failure; the removal of human connections; and pressure on community services such as food banks to deal with the consequences.

Garbage In: Garbage Out

Emily Keddell and Tony Stanley discussed the concerns about predicative algorithms used by certain local authorities such as Hackney, in an article for Community care in March 2018

They identify a number of concerns. Some are easy for me to understand. For example, how is consent obtained to use people’s data to inform these systems? There are serious worries about the actual accuracy of such tools and the risks of false positives are high – one tool developed in New Zealand was just 25% accurate at the top decile of risk over five years – meaning there were no findings of actual harm for 75% of those identified by the tool as high risk.

Some concerns however reveal the depth of my ignorance about how such systems work. Which is a worry. If I don’t understand it, how can I – a lawyer often acting for parents – ever hope to challenge it? The authors comment in the following terms:

The source and quality of the predictive variables, the quality of data linkage, the type of statistical methods used, the outcome the algorithm is trained on and the accuracy of the algorithm all require examination.

I think this translates to the famous phrase ‘Garbage In: Garbage out’ i.e. systems that manipulate data to produce likely outcomes, are only as good as the data they are fed. What happens if someone makes a false allegation about you? Is that ‘data’ that will be recorded to inform your future risk? How do you know what ‘data’ is stored about you and how do you challenge it?

The authors comment:

The big problem in an algorithm drawing on administrative data is that it will contain bias relating to poverty and deprivation. Where council housing data is used, for example, those who don’t need council housing will be absent. Those caught up in criminal justice systems and social services of any kind lead to an oversampling of the poor.

Big datasets such as these make some people invisible, while others become super visible, caught in the glare of the many data points that the council or government holds about them. Where such processes occur under the veil of commercial sensitivity, even the most basic of ethical or data checks are difficult to undertake.

Dr Patrick Brown, Associate professor, Amsterdam Institute of Social Science Research, University of Amsterdam; editor, Health, Risk and Society commented in a letter to the Guardian on September 19th 2018:

Our own research into child protection notes a weak evidence base for interventions, with social workers falling back on crude assumptions. Stereotypes discriminate against some families and lead to the overlooking of risk in other cases, yet may become entrenched and legitimised when incorporated into technology. Research is needed into whether these technologies enhance decision-making or whether they become uncritically relied on by pressured professionals with burgeoning caseloads. Enticed by software-driven solutions, our overstretched and decentralised child-protection system may lack the capacity for a robust ethical and evidence-based reflection on these technologies.

James Hind puts it this way:

If the reader has coded anything, they will learn that bad code and inputs result in bad outputs. For example, if I dumped into an AI system voting intentions of a large sample of voters in Clacton UK, and used this to predict how the UK will vote in an overall general election, it might suggest UKIP would form the next government, but when the prediction is tested in real life, UKIP will if they are lucky only have control of the Clacton seat in Parliament. In a rising number of cases it has been discovered that the models built on big data are faulty, biased against certain groups, and are unable to handle unique situations. People are forced to conform to a narrow set of categories to access services or be on the good side of a statistical artificial computer model that has no relation to reality.

It is a tragedy that for reasons of money, faith in a flawed technology, and a lack of trust of the wisdom and knowledge of human beings with decades of experience in their fields, the AI has replaced the human with tragic consequences for individuals and society. Families wrongly suffer their children being taken into care, or being imprisoned because the computer judged according to its model this was the right outcome, and nobody can challenge the system data model, because nobody understands how it came to the conclusion.

Conclusion

Even from my brief investigation and reading, there are clearly a number of issues of serious ethical and practical concerns that make it worrying that use of AI to identify children at risk appears to be something that is being enthusiastically touted by senior figures in the social work profession. I was glad to see Professor Lauren Devine of the University of the West of England tweeting today (September 24th) that she is concerned about the use of AI and will commence research funded by the Economic and Research Council in 2019 into the ‘risk of risk’. I will be very interested in her findings.

I will leave the last word to Tina Shaw who also commented in a letter to the Guardian:

Why are cash-strapped councils wasting money on predictive software telling us what we already know? It’s not rocket science. Poverty, addictions, poor health, school exclusions etc, have always been predictors of potential difficulties for children. They should be spending what little money there is on preventive services, Sure Start nurseries, youth clubs and teaching assistants.

EDIT September 26th – further comments

Some interesting discussion followed on Twitter. I have added additional resources to the list of further reading below and note the key concerns raised by those commenting:

Sophie Ayres emphasised the issue of legality of sharing information to feed the algorithm without the consent of the data subject: ‘how does a Children Services team have the right to information such as school attendance. Usually at the start of a social work assessment – consent forms are signed by parents to say sw can contact other agencies. If parents to not consent at CIN stage – SW cannot seek info’.
Lack of accountability concerned Professor Devine: ‘also the content of their algorithm? These things are cheap to put together, unaccountable and sold for huge profit’.
SocialWhatNow echoed the concern about lack of accountability and wanted to know what the SWs using these systems thought about them: ‘Clarity needed. Some data not used in final models. Problem is it’s all under the radar. Embedded w/out consultation or discussion w/ the public or those who use it. Which leads me to ask, what do the social workers who use these systems think? Where are they?’
Dan McQuillan touched on the far reaching consequences of use of AI: ‘that’s symbolic of two other qualities of ai that affect services as well; the fragility of the algorithm and the thoughtlessness it can produce. the systemic effects may not be so obvious but are likely to be more far reaching’

EDIT NOVEMBER 17th 2019

Community Care report that Hackney have abandoned its venture into algorithms after it did ‘not realise the expected benefits’.

How do we judge standards of care for children?

I am grateful for this guest post from a parent who wishes to remain anonymous. She is worried about the way parents are judged on their ability to care for their child without being seen in context of the family’s particular circumstances. Why do parents appear to be held to higher standards than professionals, even though the latter are paid? She asks this question to those who work in this system – What kind of legacy will there be in years to come from what is happening here and now in the name of child protection?

Meaning: ‘a level of quality or attainment. Something used as a measure, norm, or model in comparative evaluations’

‘I’ve done the best I can for him. I’ve gotten the most resources I can for him.’ my son’s social worker said to me in what we both understood would be our last conversation together. I believed her and I appreciated her frankness as she went on to explain ‘You should be prepared for at least one crisis before he reaches twenty-one and you will need to be careful about what happens at that point – his package of support may tail off and you will may have a fight on your hands if so.’

She also explained to me that she had a close family member with his profile of strengths and difficulties and I knew she came from a country with a very different cultural approach to working with families to the one we found ourselves in. She was and probably still is, a good social worker working in a very flawed system in a very flawed world.

I thanked her for all her very committed work on my son’s behalf and her kindness and honesty to me.

Should I be able to ask for more?

As it happens the social worker’s predictions were 100% accurate. There was a truly horrible crisis that occurred as a direct result of poor local authority decision-making and yes, ‘his case’ was closed at 21. Good things happened too and I met more good people working in the system. I have to ask though – should I, as a committed parent who went looking for help from services for my son, be able to ask for more for him? Why is it acceptable that a system that sets itself up as ‘rescuing children’ can normalise young ‘rescued’ people experiencing extreme crises and being largely divested of support when they reach 21?

I suspect that Corporate Parenting Principles were articulated in the Children and Social Work Act 2017 in recognition of the low bar of what is and should not be acceptable. I also believe that there are many good people in the system like my son’s then social worker, who will do the best they can for the children and young people in their care and yet in many cases they will fail – corporate parenting principles or not. They will fail because not everything is fixable or the timescales are wrong – what is fixed may come unstuck, what is broken may be mended over time – or for a myriad of other reasons to do with complexity and resources.

…And by contrast

Just ask yourself – What parent who has need of social care help keeping their child safe could say ‘I’ve done the best I can for him’ and not expect to be challenged about why they haven’t ‘done x or y, engaged with a or b, sought help from c or d and tried m or n method of parenting.’ This is a completely different and much higher standard than the one parents can hold professionals to even though professional are paid to deliver, while parents are not.

High standards are good but they are also problematic

High standards are good but they are also problematic if they are based on poor understanding or inability to acknowledge underlying difficulties preventing standards being met. They are also problematic when they give a ‘get out of jail free card’ to one ‘side’ and ‘throw the book ‘at the other. These kind of ‘standards’ are of little value to anyone. Good people will still try and do good things and bad people will still keep doing bad things. Sometimes even good people will do bad things working in bad systems with bad cultures.

What will be the legacy in years to come?

Where the general public are affected by or come up against professionals with a ‘professional’ understanding of abuse and neglect (most often con-joined together as in this very problematic Health and Social Care NICE standard) who are told to suspect that anything that causes a child distress or to ‘malfunction’ could be seen as an indicator of bad parenting or frames every parent without enough material resources as deficient – people question what is happening. As Louise Tickle, a Guardian columnist, noted at the CPConf2018, they are at first confused and then outraged. I know I am and I also know there are risks around that outrage too – risks around professionals doing good work on behalf of abused and severely neglected children becoming thoroughly discredited in the eyes of the public.

My question to professionals who work in this system is one around ‘legacy’ -What kind of legacy will there be in years to come from what is happening here and now in the name of child protection? What will our children’s children judgement be of the standards used that for example ignore context including disastrous welfare policy, particularly affecting the disabled and poor and frame those affected by these policies as ‘abusive and neglectful of their children’? Will the response ‘We tried our best’ be enough?

I very much doubt it. Standards can and are likely to change. I think their question would be ‘How could you have been part of this and not fought against it? How come you saw it happen, knew it was happening and just went about your business as usual? How come you were not part of the solution, only part of the problem’.

#CPConf2018 – putting ‘future emotional harm’ in context

On Saturday 15th September The Transparency Project supported the third Child Protection Conference and Bath Publishing kindly sponsored, thus ensuring those attending had some biscuits and some reading materials.

I will publish here below my presentation at the conference and will shortly publish a summary of what was said by all the speakers and the audience. As ever, thanks go to those who came to speak and also those who were prepared to listen. In honour of Lady Hale – the one dissenting voice in the Supreme Court in judgement of Re B – I wore her face on my chest for the day.

The aim of #CPConf2018 was not only to launch The Transparency Project’s Guidance note on the use of experts in family proceedings, but to begin the discussion on what would be needed for a further Guidance Note about how risk assessments are carried out, and how we can best understand them and challenge them if needed.

The Children Act 1989 and the introduction of ‘risk of future emotional harm’.

1. The 1989 Act was born following:
(1) a review by the Law Commission of England and Wales of the private law relating to the guardianship and upbringing of children (culminating in Law Com No 172, [1988] EWLC 172, Review of Child Law: Guardianship and Custody, 1988) and
(2) an interdepartmental review, led by the Department of Health and Social Security, into the public law relating to child care and children’s services (Review of Child Care Law: Report to ministers of an interdepartmental working party, 1985, HMSO).
2. The aim was to replace the existing ‘complicated and incoherent system’ with “a simplified and coherent body of law comprehensible not only to those operating it but also to those affected by its operation” (Second Report, Session 1983-84, Children in Care, HC 360).
3. It was considered to be a benefit to the new legislation that it was prepared to look to the future and protect children against a serious risk that they would suffer future harm, rather than waiting until actual harm had occurred until taking action.
4. However, it is clear we still have serious problems;
(1) identifying emotional harm,
(2) agreeing how serious it is and
(3) assessing the risk of it happening in the future.
5. There is no doubt that ‘emotional harm’ has been found to have really serious impact on children as they grow. Note for e.g. N. Hickey, E. Vizard, E. McCrory et al., Links between juvenile sexually abusive behaviour and emerging severe personality disorder traits in childhood, (Home Office, Department of Health and National Offender Management Service, 2006).
6. However, there are infinite number of variables about people’s behaviour and their reactions to it. We can agree that somethings are generally bad all of the time – for example, hitting or shouting at a child on a day to day basis. But some children grow up ok, possibly due to having other safeguards in place, supportive school or grandparents etc. It is simply not possible to provide a catch all definition of ‘Emotional harm’ and predict with much certainty what impact will be born by each individual child.
7. the concept of emotional harm, let alone future emotional harm, seems to cause a lot of people unease and disquiet. Either they don’t understand it or they think it misused – I suspect both. I recall the French documentary makers of ‘England’s Stolen Children’ were utterly horrified by it, calling it a concept ‘unknown’ to legislation elsewhere.
8. To me this is the crucial point – law must exist to serve the people, not impose shadowy misunderstood and misapplied concepts upon them. Professor Devine and many others make the point that our current system of child protection is seen through a lens of risk which clearly impacts on how social workers will assess the situation before them. There is abundant evidence that the language we use impacts on the way we think about a situation – note the work of Professor Kelly at the Harvard Medical School who experimented with two different descriptions of someone addicted to drugs. One was “substance abuser,” the other described as having “substance use disorder. When testing these phrases with both doctors and the general public, both groups displayed much more punitive attitudes towards to the ‘substance abuser’.
9. I also note that ‘emotional abuse’ of children is NOT currently covered in the criminal law, for example. See Children and Young Person’s Act 1933. There were calls for reform in 2013 stating this law was not fit for purpose as based on historic and outdated understanding – see ‘The criminal law and child neglect, independent analysis and proposals for reform’ Action for Children 2013. But I don’t know what if anything is happening – I suspect not.
10. The amount of care cases involving emotional harm is clearly growing so there is an urgent need to be clear about how it is identified and how we make decisions about how serious it is or could be. NSPCC statistics show neglect cases rising from 17,930 in 2013 to 24,590 in 2017; emotional abuse from 13,640 to 17,280.
11. All of this I hope we can discuss today. I would like to touch briefly on what happened in the Supreme Court decision of Re B in 2013 as this is such an important decision that sets the scene for the current law and practice. Lucy Reed is going to discuss further the lawyer’s perspective about how the current law is operating.

FUTURE EMOTIONAL HARM – the SUPREME COURT PERSPECTIVE

12. Guidance from Re B 2013 UKSC
13. ‘Amelia’ was born in April 2010 and immediately removed from her parents’ care. This case is described by Julie Doughty (rightly) as:
‘A remarkable case where a child is to be adopted although she has not suffered any harm attributable to her parents, both of whom have established and maintained positive contact with her for more than 2 years since she was removed at birth’.
Julie Doughty (2013) Re B (A Child) (Care Order) (2013) UKSC 33, Journal of Social Welfare and Family Law
14. The concerns about the parents and particularly the mother were based on their past behaviours. The mother had been involved in a dysfunctional relationship with her domineering step-father who started having sex with her when she was only 15, resulting in 6 abortions and one child, who was also taken into care in 2011. She had several criminal convictions for offences of dishonesty. She had been diagnosed as having somatisation disorder, a psychiatric illness in which the sufferer makes multiple complaints to medical professionals for which no physical explanation can be found. She was found to be a ‘pathological liar’ and continued making serious false allegations against a variety of people even when no longer under the malign influence of her step father.
15. The father had 52 criminal convictions dating from when he was 13 and was very unwilling to co-operate. For example, rather than agreeing to take a drugs test in 2010, he told the LA to ‘kiss my arse’ until eventually agreeing in July 2011 – thus contributing to a year’s delay for decisions about his daughter. (This could not happen now of course – the 26 week timetable would have meant the final care order being made no later than October 2010!).
16. The court decided in 2012 after a 15 day hearing, with evidence from a variety of experts, that Amelia should be adopted. This was on the basis that although Amelia had suffered no actual harm in care of her parents and they had been able to maintain a positive and loving relationship with her over 2 years of supervised contact, if she went to live with them, there was a serious risk that neither parent could create and maintain a safe environment for her as she was growing up.
17. There are obvious worries about this case – any case that gets to the Supreme Court is raising clear and serious issues of general public importance. Although the Court of Appeal upheld the decision of the first judge on the basis that his judgment was ‘long, detailed and careful’, they found the case ‘troubling’ as an example of state intervention regarding a ‘much loved child’ in the subjective area of moral and emotional risk, rather than physical abuse. The famous statement of Hedley J is relevant again; Re L (Care Threshold Conditions) [2007] 1 FLR 2050 para 50
Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent… it is not the provenance of the state to spare children all the consequences of defective parenting’.
18. So the case continued to the Supreme Court. The appeal was dismissed but it is important to note both that this was not unanimous and the dissenting Judge was Lady Hale. She agreed, with some reluctance that threshold was crossed but regretted that the first Judge had not explicitly identified what exactly tipped this case over the threshold. It has to be something of character or significance to justify the compulsory intervention of the state.

This case raises squarely the problem of how should courts assess risks that are ‘conditional’ or unrealised?

19. There is a clear worry here that not enough attention was paid to the impact on the parents of the system itself on what worried the judges most about them – their unwillingness or inability to co-operate with professionals.
20. As Julie Doughty comments, Lady Hale was the only judge to refer to facts that made the parents anxieties about Amelia’s health and their distrust of professionals less irrational. For example, that Ameila was born prematurely at 32 weeks and was initially cared for in intensive care. The parents received no ‘pre proceedings letter’ . The mother in particular had escaped a horrifically abusive relationship with her own step father.
21. Lady Hale did not accept that Amelia being adopted was a ‘proportionate’ response to the risk of harm identified. She was concerned that the most drastic option for a child (closed adoption) was the choice in a case where even the first Judge had not found threshold crossed ‘in the most extreme way’.
22. What is also interesting is that the commentary on this case on the Supreme Court’s own website is critical. I note:
As Lady Hale highlighted in her dissenting opinion, this case brings into stark relief another difficult question. When should the state take away a child, not because physical abuse or neglect is feared, but because the character of the parents is such that they cannot help but be deficient parents? What was remarkable about this case is that, though the parents clearly had significant problems, their care of their daughter was held to be highly satisfactory. As parents, they appeared to be competent; as people, apparently less so.
The decision made here is problematic for two reasons.
Firstly, it is based wholly on future harm. The risks identified may never materialise. Further, it is enough that such harm is “possible”; it need not even be “probable”. It is not a perfect comparison, because the one deals with the past whilst the other deals with the future, but it is worth noting that we do not convict people of crimes unless we are “certain so that we are sure” that they have committed them: in contrast, we will take children away from their parents on the basis of a “real possibility”.
Secondly, even if the harm identified does materialise, is it enough? We have decided as a society that, as a general rule, it is more important for children to be brought up in their own families than to be brought up in “better” families. Does the effect of the parents’ dishonesty and mother’s psychiatric illnesses justify removing Amelia permanently from their care? As Hedley J observed in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050, 2063: “Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent”.

23. I am not confident that one can so neatly make a distinction between who we are as ‘people’ and how we are as ‘parents’ – if we are rude, impatient or violent as ‘people’ we are highly likely to display similar traits when wearing our parent hats. ‘How you do anything is how you do everything’
24. However, if more cases are going to be determined on the basis of a risk of something that hasn’t happened yet, and that something is as potentially nebulous as ‘emotional harm’ then we do need to take more seriously the fact that parents appear to be increasingly alienated and confused by care proceedings. This problem is compounded by the very bad advice I have often seen on line about refusing to co-operate. The likely consequences of that refusal is to increase concerns and escalate the probability of serious action being taken, or pessimism about the parents’ abilities to change. Lucy Reed will look at this problem in more detail.

25. Guidance on threshold from the Supreme Court.

(1) Court’s task is not to secure for every child a happy and fulfilled life but to be satisfied the statutory threshold are crossed
(2) This requires the court to identify as precisely as possible the nature of the harm which the child is suffering or is likely to suffer.
(3) This is particularly important where the child has not yet suffered any, or any significant, harm and where the harm which is feared is the impairment of intellectual, emotional, social or behavioural development.
(4) Significant harm is harm which is “considerable, noteworthy or important”. The court should identify why and in what respects the harm is significant.
(5) The harm has to be attributable to a lack, or likely lack, of reasonable parental care, not simply to the characters and personalities of both the child and her parents.
(6) Finally, where harm has not yet been suffered, the court must consider the degree of likelihood that it will be suffered in the future. This will entail considering the degree of likelihood that the parents’ future behaviour will amount to a lack of reasonable parental care. It will also entail considering the relationship between the significance of the harmed feared and the likelihood that it will occur. Simply to state that there is a “risk” is not enough, the harm must be ‘likely’.

Further guidance S & H-S (Children), Re [2018] EWCA Civ 1282 (06 June 2018)

(7) It is good practice to distil findings into one or two short and carefully structured paragraphs which spell out the court’s finding on threshold identifying whether the finding is that the child ‘is suffering’ and/or ‘is likely to suffer’ significant harm, specifying the category of harm and the basic finding(s) as to causation.
(8) When making a finding of harm, it is important to identify whether the finding is of ‘significant harm’ or simply ‘harm’.
(9) A finding that the child ‘has suffered significant harm’ is not a relevant finding for s 31, which looks to the ‘relevant date’ and the need to determine whether the child ‘is suffering’ or ‘is likely to suffer’ significant harm.
(10) Where findings have been made in previous proceedings, a judgment in subsequent proceedings should make reference to any relevant earlier findings and identify which, if any, are specifically relied upon in support of a finding that the threshold criteria are satisfied in the later proceedings as at the ‘relevant date’.
(11) At the conclusion of the hearing, after judgment has been given, there is a duty on counsel for the local authority and for the child, together with the judge, to ensure that any findings as to the threshold criteria are sufficiently clear.
(12) The court order that records the making of a care order should include within it, or have annexed to it, a clear statement of the basis upon which the s 31 threshold criteria have been established.

https://twitter.com/SVPhillimore/status/1040841426194636800

Harsh but fair; the parent’s view

Conclusion

(un)amusing postscript

John’s story

The mother’s story – she wanted to run but didn’t

First disclaimer. I am not a bigot.

Second comment. We cannot sacrifice facts for feelings.

The decisions in Re J [2016]

What happened after 2016?

What do we know about the implications of medical and surgical intervention for children?

To what extent are adult influences driving children?

Conclusions

Edit 26th December 3.40pm

Second Edit 26th December 5.55pm

Third Edit 1st January 2019

Further reading

Articles/Research

Talks/television

Case law

Justice must be seen to be done

Lack of scrutiny can have terrible consequences.

Lack of scrutiny allows stale cliche to become unchallenged truth

We are doing this in the child’s best interests, which are paramount.

But what about the risks to children of increased openness?

Conclusions

Further Reading

What is an advocate?

My view of the law.

Publication of “the nature of the dispute”, which is permissible, and publication of even summaries of the evidence, which is not.

Consideration of the case law when applied to Ms Tickle’s proposed blog

Further reading

Machine learning is becoming a methodological substrate for knowledge and action. But machine learning is not ethically neutral. It is skewed by data and obfuscated by nature…

The history of predictive analytics in child protection – Allegheny County

What’s the problem?

Follow the money

Garbage In: Garbage Out

Conclusion

EDIT September 26th – further comments

EDIT NOVEMBER 17th 2019

Further reading

Meaning: ‘a level of quality or attainment. Something used as a measure, norm, or model in comparative evaluations’

Should I be able to ask for more?

…And by contrast

High standards are good but they are also problematic

What will be the legacy in years to come?

The Children Act 1989 and the introduction of ‘risk of future emotional harm’.

FUTURE EMOTIONAL HARM – the SUPREME COURT PERSPECTIVE

This case raises squarely the problem of how should courts assess risks that are ‘conditional’ or unrealised?

25. Guidance on threshold from the Supreme Court.

Further guidance S & H-S (Children), Re [2018] EWCA Civ 1282 (06 June 2018)