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PRACTICE DIRECTION 12J – CHILD ARRANGEMENTS AND CONTACT ORDERS: DOMESTIC ABUSE AND HARM

This Practice Direction supplements FPR Part 12, and incorporates and supersedes the President’s Guidance in Relation to Split Hearings (May 2010) as it applies to proceedings for child arrangements orders.

This is the updated PD12J from 2017. For a more general discussion of issues around violence in family proceedings see this post “Reporting Domestic Violence” Comments from the President of the Family Division about what the amended PD hopes to achieve are set out below in his ‘circular’ of September 2017. 

Summary

1. This Practice Direction applies to any family proceedings in the Family Court or the High Court under the relevant parts of the Children Act 1989 or the relevant parts of the Adoption and Children Act 2002 in which an application is made for a child arrangements order, or in which any question arises about where a child should live, or about contact between a child and a parent or other family member, where the court considers that an order should be made.
2. The purpose of this Practice Direction is to set out what the Family Court or the High Court is required to do in any case in which it is alleged or admitted, or there is other reason to believe, that the child or a party has experienced domestic abuse perpetrated by another party or that there is a risk of such abuse.
3. For the purpose of this Practice Direction –
“domestic abuse” includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse. Domestic abuse also includes culturally specific forms of abuse including, but not limited to, forced marriage, honour-based violence, dowry-related abuse and transnational marriage abandonment;
“abandonment” refers to the practice whereby a husband, in England and Wales, deliberately abandons or “strands” his foreign national wife abroad, usually without financial resources, in order to prevent her from asserting matrimonial and/or residence rights in England and Wales. It may involve children who are either abandoned with, or separated from, their mother;
“coercive behaviour” means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim;
“controlling behaviour” means an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour;
“development” means physical, intellectual, emotional, social or behavioural development;
“harm” means ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another, by domestic abuse or otherwise;
“health” means physical or mental health;
“ill-treatment” includes sexual abuse and forms of ill-treatment which are not physical; and
“judge” includes salaried and fee-paid judges and lay justices sitting in the Family Court and, where the context permits, can include a justices’ clerk or assistant to a justices’ clerk in the Family Court.

General principles

4. Domestic abuse is harmful to children, and/or puts children at risk of harm, whether they are subjected to domestic abuse, or witness one of their parents being violent or abusive to the other parent, or live in a home in which domestic abuse is perpetrated (even if the child is too young to be conscious of the behaviour). Children may suffer direct physical, psychological and/or emotional harm from living with domestic abuse, and may also suffer harm indirectly where the domestic abuse impairs the parenting capacity of either or both of their parents.
5. The court must, at all stages of the proceedings, and specifically at the First Hearing Dispute Resolution Appointment (‘FHDRA’), consider whether domestic abuse is raised as an issue, either by the parties or by Cafcass or CAFCASS Cymru or otherwise, and if so must –
• identify at the earliest opportunity (usually at the FHDRA) the factual and welfare issues involved;
• consider the nature of any allegation, admission or evidence of domestic abuse, and the extent to which it would be likely to be relevant in deciding whether to make a child arrangements order and, if so, in what terms;
• give directions to enable contested relevant factual and welfare issues to be tried as soon as possible and fairly;
• ensure that where domestic abuse is admitted or proven, any child arrangements order in place protects the safety and wellbeing of the child and the parent with whom the child is living, and does not expose either of them to the risk of further harm; and
• ensure that any interim child arrangements order (i.e. considered by the court before determination of the facts, and in the absence of admission) is only made having followed the guidance in paragraphs 25–27 below.
In particular, the court must be satisfied that any contact ordered with a parent who has perpetrated domestic abuse does not expose the child and/or other parent to the risk of harm and is in the best interests of the child.
6. In all cases it is for the court to decide whether a child arrangements order accords with Section 1(1) of the Children Act 1989; any proposed child arrangements order, whether to be made by agreement between the parties or otherwise must be carefully scrutinised by the court accordingly. The court must not make a child arrangements order by consent or give permission for an application for a child arrangements order to be withdrawn, unless the parties are present in court, all initial safeguarding checks have been obtained by the court, and an officer of Cafcass or CAFCASS Cymru has spoken to the parties separately, except where it is satisfied that there is no risk of harm to the child and/or the other parent in so doing.
7. In proceedings relating to a child arrangements order, the court presumes that the involvement of a parent in a child’s life will further the child’s welfare, unless there is evidence to the contrary. The court must in every case consider carefully whether the statutory presumption applies, having particular regard to any allegation or admission of harm by domestic abuse to the child or parent or any evidence indicating such harm or risk of harm.
8. In considering, on an application for a child arrangements order by consent, whether there is any risk of harm to the child, the court must consider all the evidence and information available. The court may direct a report under Section 7 of the Children Act 1989 to be provided either orally or in writing, before it makes its decision; in such a case, the court must ask for information about any advice given by the officer preparing the report to the parties and whether they, or the child, have been referred to any other agency, including local authority children’s services. If the report is not in writing, the court must make a note of its substance on the court file and a summary of the same shall be set out in a Schedule to the relevant order.

Before the FHDRA

9. Where any information provided to the court before the FHDRA or other first hearing (whether as a result of initial safeguarding enquiries by Cafcass or CAFCASS Cymru or on form C1A or otherwise) indicates that there are issues of domestic abuse which may be relevant to the court’s determination, the court must ensure that the issues are addressed at the hearing, and that the parties are not expected to engage in conciliation or other forms of dispute resolution which are not suitable and/or safe.
10. If at any stage the court is advised by any party (in the application form, or otherwise), by Cafcass or CAFCASS Cymru or otherwise that there is a need for special arrangements to protect the party or child attending any hearing, the court must ensure so far as practicable that appropriate arrangements are made for the hearing (including the waiting arrangements at court prior to the hearing, and arrangements for entering and exiting the court building) and for all subsequent hearings in the case, unless it is advised and considers that these are no longer necessary. Where practicable, the court should enquire of the alleged victim of domestic abuse how best she/he wishes to participate.

First hearing / FHDRA

11. At the FHDRA, if the parties have not been provided with the safeguarding letter/report by Cafcass/CAFCASS Cymru, the court must inform the parties of the content of any safeguarding letter or report or other information which has been provided by Cafcass or CAFCASS Cymru, unless it considers that to do so would create a risk of harm to a party or the child.
12. Where the results of Cafcass or CAFCASS Cymru safeguarding checks are not available at the FHDRA, and no other reliable safeguarding information is available, the court must adjourn the FHDRA until the results of safeguarding checks are available. The court must not generally make an interim child arrangements order, or orders for contact, in the absence of safeguarding information, unless it is to protect the safety of the child, and/or safeguard the child from harm (see further paragraphs 25-27 below).
13. There is a continuing duty on the Cafcass Officer/Welsh FPO which requires them to provide a risk assessment for the court under section 16A Children Act 1989 if they are given cause to suspect that the child concerned is at risk of harm. Specific provision about service of a risk assessment under section 16A of the 1989 Act is made by rule 12.34 of the FPR 2010.
14. The court must ascertain at the earliest opportunity, and record on the face of its order, whether domestic abuse is raised as an issue which is likely to be relevant to any decision of the court relating to the welfare of the child, and specifically whether the child and/or parent would be at risk of harm in the making of any child arrangements order.

Admissions

15. Where at any hearing an admission of domestic abuse toward another person or the child is made by a party, the admission must be recorded in writing by the judge and set out as a Schedule to the relevant order. The court office must arrange for a copy of any order containing a record of admissions to be made available as soon as possible to any Cafcass officer or officer of CAFCASS Cymru or local authority officer preparing a report under section 7 of the Children Act 1989.

Directions for a fact-finding hearing

16. The court should determine as soon as possible whether it is necessary to conduct a fact-finding hearing in relation to any disputed allegation of domestic abuse –
(a) in order to provide a factual basis for any welfare report or for assessment of the factors set out in paragraphs 36 and 37 below;
(b) in order to provide a basis for an accurate assessment of risk;
(c) before it can consider any final welfare-based order(s) in relation to child arrangements; or
(d) before it considers the need for a domestic abuse-related Activity (such as a Domestic Violence Perpetrator Programme (DVPP)).
17. In determining whether it is necessary to conduct a fact-finding hearing, the court should consider –
(a) the views of the parties and of Cafcass or CAFCASS Cymru;
(b) whether there are admissions by a party which provide a sufficient factual basis on which to proceed;
(c) if a party is in receipt of legal aid, whether the evidence required to be provided to obtain legal aid provides a sufficient factual basis on which to proceed;
(d) whether there is other evidence available to the court that provides a sufficient factual basis on which to proceed;
(e) whether the factors set out in paragraphs 36 and 37 below can be determined without a fact-finding hearing;
(f) the nature of the evidence required to resolve disputed allegations;
(g) whether the nature and extent of the allegations, if proved, would be relevant to the issue before the court; and
(h) whether a separate fact-finding hearing would be necessary and proportionate in all the circumstances of the case.
18. Where the court determines that a finding of fact hearing is not necessary, the order must record the reasons for that decision.
19. Where the court considers that a fact-finding hearing is necessary, it must give directions as to how the proceedings are to be conducted to ensure that the matters in issue are determined as soon as possible, fairly and proportionately, and within the capabilities of the parties. In particular it should consider –
(a) what are the key facts in dispute;
(b) whether it is necessary for the fact-finding to take place at a separate (and earlier) hearing than the welfare hearing;
(c) whether the key facts in dispute can be contained in a schedule or a table (known as a Scott Schedule) which sets out what the applicant complains of or alleges, what the respondent says in relation to each individual allegation or complaint; the allegations in the schedule should be focused on the factual issues to be tried; and if so, whether it is practicable for this schedule to be completed at the first hearing, with the assistance of the judge;
(d) what evidence is required in order to determine the existence of coercive, controlling or threatening behaviour, or of any other form of domestic abuse;
(e) directing the parties to file written statements giving details of such behaviour and of any response;
(f) whether documents are required from third parties such as the police, health services or domestic abuse support services and giving directions for those documents to be obtained;
(g) whether oral evidence may be required from third parties and if so, giving directions for the filing of written statements from such third parties;
(h) where (for example in cases of abandonment) third parties from whom documents are to be obtained are abroad, how to obtain those documents in good time for the hearing, and who should be responsible for the costs of obtaining those documents;
(i) whether any other evidence is required to enable the court to decide the key issues and giving directions for that evidence to be provided;
(j) what evidence the alleged victim of domestic abuse is able to give and what support the alleged victim may require at the fact-finding hearing in order to give that evidence;
(k) in cases where the alleged victim of domestic abuse is unable for reasons beyond their control to be present at the hearing (for example, abandonment cases where the abandoned spouse remains abroad), what measures should be taken to ensure that that person’s best evidence can be put before the court. Where video-link is not available, the court should consider alternative technological or other methods which may be utilised to allow that person to participate in the proceedings;
(l) what support the alleged perpetrator may need in order to have a reasonable opportunity to challenge the evidence; and
(m) whether a pre-hearing review would be useful prior to the fact-finding hearing to ensure directions have been complied with and all the required evidence is available.
20. Where the court fixes a fact-finding hearing, it must at the same time fix a Dispute Resolution Appointment to follow. Subject to the exception in paragraph 31 below, the hearings should be arranged in such a way that they are conducted by the same judge or, wherever possible, by the same panel of lay justices; where it is not possible to assemble the same panel of justices, the resumed hearing should be listed before at least the same chairperson of the lay justices. Judicial continuity is important.

Reports under Section 7

21. In any case where a risk of harm to a child resulting from domestic abuse is raised as an issue, the court should consider directing that a report on the question of contact, or any other matters relating to the welfare of the child, be prepared under section 7 of the Children Act 1989 by an Officer of Cafcass or a Welsh family proceedings officer (or local authority officer if appropriate), unless the court is satisfied that it is not necessary to do so in order to safeguard the child’s interests.
22. If the court directs that there shall be a fact-finding hearing on the issue of domestic abuse, the court will not usually request a section 7 report until after that hearing. In that event, the court should direct that any judgment is provided to Cafcass/CAFCASS Cymru; if there is no transcribed judgment, an agreed list of findings should be provided, as set out at paragraph 29.
23. Any request for a section 7 report should set out clearly the matters the court considers need to be addressed.

Representation of the child

24. Subject to the seriousness of the allegations made and the difficulty of the case, the court must consider whether it is appropriate for the child who is the subject of the application to be made a party to the proceedings and be separately represented. If the court considers that the child should be so represented, it must review the allocation decision so that it is satisfied that the case proceeds before the correct level of judge in the Family Court or High Court.

Interim orders before determination of relevant facts

25. Where the court gives directions for a fact-finding hearing, or where disputed allegations of domestic abuse are otherwise undetermined, the court should not make an interim child arrangements order unless it is satisfied that it is in the interests of the child to do so and that the order would not expose the child or the other parent to an unmanageable risk of harm (bearing in mind the impact which domestic abuse against a parent can have on the emotional well-being of the child, the safety of the other parent and the need to protect against domestic abuse including controlling or coercive behaviour).
26. In deciding any interim child arrangements question the court should–
(a) take into account the matters set out in section 1(3) of the Children Act 1989 or section 1(4) of the Adoption and Children Act 2002 (‘the welfare check-list’), as appropriate; and
(b) give particular consideration to the likely effect on the child, and on the care given to the child by the parent who has made the allegation of domestic abuse, of any contact and any risk of harm, whether physical, emotional or psychological, which the child and that parent is likely to suffer as a consequence of making or declining to make an order.
27. Where the court is considering whether to make an order for interim contact, it should in addition consider –
(a) the arrangements required to ensure, as far as possible, that any risk of harm to the child and the parent who is at any time caring for the child is minimised and that the safety of the child and the parties is secured; and in particular:
(i) whether the contact should be supervised or supported, and if so, where and by whom; and
(ii) the availability of appropriate facilities for that purpose;
(b) if direct contact is not appropriate, whether it is in the best interests of the child to make an order for indirect contact; and
(c) whether contact will be beneficial for the child.
The fact-finding hearing or other hearing of the facts where domestic abuse is alleged
28. While ensuring that the allegations are properly put and responded to, the fact-finding hearing or other hearing can be an inquisitorial (or investigative) process, which at all times must protect the interests of all involved. At the fact-finding hearing or other hearing –
• each party can be asked to identify what questions they wish to ask of the other party, and to set out or confirm in sworn evidence their version of the disputed key facts; and
• the judge should be prepared where necessary and appropriate to conduct the questioning of the witnesses on behalf of the parties, focusing on the key issues in the case.
29. The court should, wherever practicable, make findings of fact as to the nature and degree of any domestic abuse which is established and its effect on the child, the child’s parents and any other relevant person. The court must record its findings in writing in a Schedule to the relevant order, and the court office must serve a copy of this order on the parties. A copy of any record of findings of fact or of admissions must be sent by the court office to any officer preparing a report under Section 7 of the 1989 Act.
30. At the conclusion of any fact-finding hearing, the court must consider, notwithstanding any earlier direction for a section 7 report, whether it is in the best interests of the child for the court to give further directions about the preparation or scope of any report under section 7; where necessary, it may adjourn the proceedings for a brief period to enable the officer to make representations about the preparation or scope of any further enquiries. Any section 7 report should address the factors set out in paragraphs 36 and 37 below, unless the court directs otherwise.
31. Where the court has made findings of fact on disputed allegations, any subsequent hearing in the proceedings should be conducted by the same judge or by at least the same chairperson of the justices. Exceptions may be made only where observing this requirement would result in delay to the planned timetable and the judge or chairperson is satisfied, for reasons which must be recorded in writing, that the detriment to the welfare of the child would outweigh the detriment to the fair trial of the proceedings.

 

In all cases where domestic abuse has occurred

32. The court should take steps to obtain (or direct the parties or an Officer of Cafcass or a Welsh family proceedings officer to obtain) information about the facilities available locally (to include local domestic abuse support services) to assist any party or the child in cases where domestic abuse has occurred.
33. Following any determination of the nature and extent of domestic abuse, whether or not following a fact-finding hearing, the court must, if considering any form of contact or involvement of the parent in the child’s life, consider-
(a) whether it would be assisted by any social work, psychiatric, psychological or other assessment (including an expert safety and risk assessment) of any party or the child and if so (subject to any necessary consent) make directions for such assessment to be undertaken and for the filing of any consequent report. Any such report should address the factors set out in paragraphs 36 and 37 below, unless the court directs otherwise;
(b) whether any party should seek advice, treatment or other intervention as a precondition to any child arrangements order being made, and may (with the consent of that party) give directions for such attendance.
34. Further or as an alternative to the advice, treatment or other intervention referred to in paragraph 33(b) above, the court may make an Activity Direction under section 11A and 11B Children Act 1989. Any intervention directed pursuant to this provision should be one commissioned and approved by Cafcass. It is acknowledged that acceptance on a DVPP is subject to a suitability assessment by the service provider, and that completion of a DVPP will take time in order to achieve the aim of risk-reduction for the long-term benefit of the child and the parent with whom the child is living.

Factors to be taken into account when determining whether to make child arrangements orders in all cases where domestic abuse has occurred

35. When deciding the issue of child arrangements the court should ensure that any order for contact will not expose the child to an unmanageable risk of harm and will be in the best interests of the child.
36. In the light of any findings of fact or admissions or where domestic abuse is otherwise established, the court should apply the individual matters in the welfare checklist with reference to the domestic abuse which has occurred and any expert risk assessment obtained. In particular, the court should in every case consider any harm which the child and the parent with whom the child is living has suffered as a consequence of that domestic abuse, and any harm which the child and the parent with whom the child is living is at risk of suffering, if a child arrangements order is made. The court should make an order for contact only if it is satisfied that the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before during and after contact, and that the parent with whom the child is living will not be subjected to further domestic abuse by the other parent.
37. In every case where a finding or admission of domestic abuse is made, or where domestic abuse is otherwise established, the court should consider the conduct of both parents towards each other and towards the child and the impact of the same. In particular, the court should consider –
(a) the effect of the domestic abuse on the child and on the arrangements for where the child is living;
(b) the effect of the domestic abuse on the child and its effect on the child’s relationship with the parents;
(c) whether the parent is motivated by a desire to promote the best interests of the child or is using the process to continue a form of domestic abuse against the other parent;
(d) the likely behaviour during contact of the parent against whom findings are made and its effect on the child; and
(e) the capacity of the parents to appreciate the effect of past domestic abuse and the potential for future domestic abuse.

Directions as to how contact is to proceed

38. Where any domestic abuse has occurred but the court, having considered any expert risk assessment and having applied the welfare checklist, nonetheless considers that direct contact is safe and beneficial for the child, the court should consider what, if any, directions or conditions are required to enable the order to be carried into effect and in particular should consider –
(a) whether or not contact should be supervised, and if so, where and by whom;
(b) whether to impose any conditions to be complied with by the party in whose favour the order for contact has been made and if so, the nature of those conditions, for example by way of seeking intervention (subject to any necessary consent);
(c) whether such contact should be for a specified period or should contain provisions which are to have effect for a specified period; and
(d) whether it will be necessary, in the child’s best interests, to review the operation of the order; if so the court should set a date for the review consistent with the timetable for the child, and must give directions to ensure that at the review the court has full information about the operation of the order.

Where a risk assessment has concluded that a parent poses a risk to a child or to the other parent, contact via a supported contact centre, or contact supported by a parent or relative, is not appropriate.

39. Where the court does not consider direct contact to be appropriate, it must consider whether it is safe and beneficial for the child to make an order for indirect contact.

The reasons of the court

40. In its judgment or reasons the court should always make clear how its findings on the issue of domestic abuse have influenced its decision on the issue of arrangements for the child. In particular, where the court has found domestic abuse proved but nonetheless makes an order which results in the child having future contact with the perpetrator of domestic abuse, the court must always explain, whether by way of reference to the welfare check-list, the factors in paragraphs 36 and 37 or otherwise, why it takes the view that the order which it has made will not expose the child to the risk of harm and is beneficial for the child.

 

PRESIDENT’S CIRCULAR : 14 September 2017
DOMESTIC ABUSE : PD12J

In the summer of 2016 I asked Mr Justice Cobb, who had chaired the Working Group which drew up the Child Arrangements Programme in 2014, to review Practice Direction 12J, to examine whether further amendment was needed in the light of the recommendations made by the All Party Parliamentary Group on Domestic Violence in its briefing dated 29 April 2016 and by Women’s Aid Federation of England (WAFE) in its ‘Nineteen Child Homicides’ report published in February 2016, and to produce recommendations. His Report, accompanied by a draft amended PD12J, was dated 18 November 2016. I published it in January 2017: [2017] Fam Law 225. At the same time, in my 16th View from the Presidents Chambers, [2017] Fam Law 151, 160-161, I indicated that, with one important exception, I accepted all his recommendations.

As I had hoped, the publication of the draft amended PD12J generated comments and helpful suggestions, including from Families Need Fathers and, following a presentation they gave at the President’s Conference in May 2017, from Southall Black Sisters.

Although final responsibility for any amendment to PD12J rests with me as President of the Family Division, I thought it appropriate to consult both the Family Justice Council and the Family Procedure Rule Committee. The draft amended PD12J has accordingly been considered by the Family Justice Council and, at a number of its meetings when various iterations of the draft were considered, by the Family Procedure Rule Committee, most recently on 10 July 2017. Following this, a final revised draft amended PD12 was prepared by officials, for whose assistance I am grateful, incorporating the various amendments agreed by me and by the Committee and helpfully identifying a few additional issues (none of major significance) for my consideration. I should add that, throughout this process, I have benefited greatly from Mr Justice Cobb’s continuing advice, for which I am most grateful.

On 7 September 2017 I made the new PD12J, annexed to this Circular. It has since been approved by the Minister of State and will come into force on 2 October 2017. It applies (see paras 1, 3) to all judges, including lay justices, whether sitting in the Family Court or in the High Court.

PD12J will require further adjustment if and when the proposed legislation restricting cross-examination of alleged victims by alleged perpetrators is enacted. We cannot await that. Hence my decision to proceed without further delay.

The new PD12J contains numerous amendments, many of important substance. Here, I highlight only two:
1 There is (see para 3) a new and much expanded definition of what is now referred to as “domestic abuse”, rather than, as before, “domestic violence”.
2 There are mandatory requirements (see paras 8, 14, 15, 18, 22, 29) for inclusion of certain specified matters in the court’s order. I appreciate the additional burden that this may impose on judges and court staff, but there is good reason for making these requirements mandatory and they must be complied with.

There have been recurring complaints in Parliament and elsewhere of inadequate compliance with PD12J. I am unable to assess to what extent, if at all, such complaints are justified. However, I urge all judges to familiarise themselves with the new PD12J and to do everything possible to ensure that it is properly complied with on every occasion and without fail by everyone to whom it applies.

The Judicial College plays a vitally important role in providing appropriate training on the new PD12J to all family judges. As I have said previously, “I would expect the judiciary to receive high quality and up-to-date training in domestic violence and it is the responsibility of the Judicial College to deliver this.” The Judicial College has risen to the challenge, as many judges will already have experienced, and I am confident that it will continue to do so.
Domestic abuse in all its many forms, and whether directed at women, at men, or at children, continues, more than forty years after the enactment of the Domestic Violence and Matrimonial Proceedings Act 1976, to be a scourge on our society. Judges and everyone else in the family system need to be alert to the problems and appropriately focused on the available remedies. PD12J plays a vital part.

James Munby, President of the Family Division
14 September 2017

The Karpman Drama Triangle – What is it?

Everywhere I’ve turned somebody has wanted to sacrifice me for my own good—only /they/ were the ones who benefited. And now we start on the old sacrificial merry-go-round. At what point do we stop?

Ralph Ellison

I am grateful for this guest post from a long time contributor and supporter of this site. She tweets as @DVHurts and has her own blog which you should visit. She writes here about the Karpman Drama Triangle

The drama triangle is a social model of human interaction – the triangle maps a type of destructive interaction that can occur between people in conflict. The drama triangle model is a tool used in psychotherapy, specifically transactional analysis.

 

Conflict, power and the roles we play

I am a parent who has been through care proceedings and I want to talk about something that was an eye opener for me, with apologies to those who are less of a nerd. My specialist subject today is the Karpman Drama Triangle and how it applies to interactions with professionals. The what?!

Basically ,there was this bloke, Stephen Karpman M.D. American of course, who as a student constructed a theory of social interaction encompassing conflict , power and the shifting roles people play. Why I first became interested in it was as a domestic violence victim , I could not understand how professionals did not see past the perpetrators immediate morphing into the victim every time the police were called. That victim status got him sympathy and belief that he was the injured party.

The Drama Triangle consists of three roles; two at the top of an inverted triangle, the persecutor and the rescuer at the top and one at the bottom is the victim. Although the roles are not static , people often have a natural leaning towards one of them initially in a relationship whether personal or professional. These are learnt roles from childhood.

I am a natural rescuer, though of course I have played of three roles at times. The reason why, is I had too much responsibility as a child and so learnt that my worth is consistent with how much I can help someone. Many caring professionals are also rescuers, but a significant minority can also spend some of their time as persecutors and victims. One such was my children’s social worker. I hope I am now not turning into the persecutor but rather pointing out bad social work practice. I will not name her, lets call her Susan.

Susan was actually a little bit younger than me, she had like many come to social work late in her late 30’s . I got to know her well, too well, as she used to slot me in as the last visit of the day and sit and talk about herself. She told me about her strained relationship with her mum, the split with her ex, all the jobs she had prior to becoming a social worker,her son, a difficult removal of a new born baby, her problems with her job….. I listened. What I didn’t realise at the time was that she was playing the victim and I was playing the rescuer, when in fact I was an actual victim whose needs she should have been attempting to find resources for. For instance we were supposed to have a family group conference and I should have had a carer’s assessment. When my situation worsened she of course then shifted roles again to be the persecutor.

We all get payback from the roles we play. Susan initially got me to confirm her victim status, she sat on the pity pot and I said the appropriate responses. Remember on the whole I am a rescuer and it was a role I was very familiar with. It was extremely unhelpful to the situation though, by rescuing , I could stay in denial about my problems and by Susan maintaining her victim status she was telling me that she was helpless to make changes to her life let alone enable me to make changes to mine. We were both trapped on the merry go round.

Act 2
Whilst Susan continued to play out her victim role , the situation worsened and our positions on the triangle shifted. She became the rescuer of my children and my ex, plus my persecutor. I then felt like a victim, when no one would acknowledge that, I in turn became her persecutor , if she had done her job properly would we have reached crisis?

Social Work in particular

I have every empathy for social workers, heavy case loads, working conditions and the undoubted trauma they face every day. However, and you knew there had to be a however, they are not victims. They are middle class , from social classification, and have far more choice and advantages than their clients. Including the ability to move jobs, if they really cannot stand the position they are in.

Their client group, if it involves child protection or mental health has multiple disadvantages. Yes some of clients problems are inter generational, but you can’t actually be blamed for your parents. Clients live very different lives,with very few options; some days just living is a miracle.

 

What is in it for me?

This is the single most helpful tool I have found in breaking the drama triangle. Not being over analytical, but simply working out what payback that both you and the person you are in any relationship with are getting. Is one helping the other , giving too much time , money, sympathy without any return.

Do you know absolutely nothing about your friend but they know your complete history? Healthy relationships benefit both parties, I’m alright, your alright. that includes relationships with professionals as well.

What are the nature of and limits to parents’ rights?

This is a post by Sarah Phillimore

Parents versus the state

The question of ‘parents rights’ has been bought into very stark focus by the court hearings around Charlie Gard. EDIT And have continued around the case of Alfie Evans. There has been an enormous wealth of comment, blogs and articles which demonstrates the strong emotional reactions of many to these proceedings; a stark illustration of the tensions around balancing completing ‘rights’ and interests of parent and child – particularly when the child is an unconscious baby.

A thoughtful article in the Independent summarised the key issues well – decisions over Charlie Gard’s future encapsulated a clash between medical opinion and parental instinct. The law is clear; where doctors and parents disagree over what treatment is in the ‘best interests’ of a child, neither parents nor doctors are able to demand or veto certain treatment. Any dispute must come before a court where a Judge will decide. The court had to operate on the fundamental principle of the Children Act 1989; that Charlie’s welfare would be the ‘paramount’ consideration.

Parents versus parents

Parents ‘rights’ when they argue between themselves about what is best for their child, are utterly subsumed into the idea of the ‘welfare of the child’. This principle was firmly and clearly restated by the Supreme Court in B (A Child) [2009] UKSC. See the judgment of  Lord Kerr at para 37 :

… 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.

There is an immediate and obvious distinction between public law (cases involving the local authority and parents) and private law (cases involving disputes between family members). Where the state wishes to intervene in the sanctity of family life, it has to satisfy the test under section 31 of the Children Act 1989 and show the child is suffering or at risk of suffering significant harm. Nothing less will justify state intervention and this high threshold will mean that some children grow up in less than ideal situations. The risks and impracticality of any policy of deliberate ‘social engineering’ determine this outcome.

But in private law cases, it is different. The focus there is on which parent or which place would promote the child’s best interests and ‘parents’ rights’ are clearly subsumed as relevant only insofar as the parents claim a right to promote those best interests.

There are some who are critical of this approach and worry that the pendulum may have swung too far away from considering ‘parents rights’ or the rights of the family as a whole.

However, the emphasis on the welfare of the child is explained by the problems that arise when individual family members have very different views about what constitutes a child’s best interests. A stark example is found in the case of Gibbs v Gibbs in 2017 where the mother was eventually sent to prison for refusing to end her campaign to publicise the father as abusive towards their children. To attempt to resolve a dispute about a child by identifying, analysing and weighing in the balance the ‘rights’ of all adult disputants would take time and energy away from identifying what the child needs.

Some areas of concern

Why does the test to over rule a parents’ rights differ according to who or what wants to prevail? 

The question for the court, in deciding a clash between parents and a state agency that happened to be a hospital was not whether Charlie Gard would suffer ‘significant harm’ if further treatment was carried out. The issue was whether or not the treatment was in his ‘best interests’ – his welfare was paramount. 

Some commentators expressed concern about this. If social workers decide that a child should be removed from his or her parents’ care, they have to bring this to a court and satisfy the test under section 31 of the Children Act 1989. That children would ‘do better’ in another environment is never a justification – as Baroness Hale commented in Re B (Children) [2008] UKHL 35

In a totalitarian society, uniformity and conformity are valued. Hence the totalitarian state tries to separate the child from her family and mould her to its own design. Families in all their subversive variety are the breeding ground of diversity and individuality. In a free and democratic society we value diversity and individuality. Hence the family is given special protection in all the modern human rights instruments…

Already, it isn’t clear what weight is afforded to the views of parents who clash with the decisions preferred by a state agency. Why should a decision whether or not to end medical treatment for a child be subject to a different test to the decision whether or not to remove a child from the parents’ care?

No one has doubted that Charlie Gard’s parents were acting out of anything other than love for their son and wish to secure him the best possible treatment. If there was no evidence before the court that their decisions risked causing him significant harm, why should the court interfere? No doubt, Charlie Gard’s parents have found the process by which their wish to make decisions for their son was overruled by the courts, similar to the misery and bafflement of a parent who faces the adoption of their child, without their consent.

If there is no legal aid, what are the implications for access to justice?

A further anomaly is the automatic availability of legal aid to parents in care cases – but not parents facing applications by an NHS trust, or wishing to argue against an adoption order, or parents arguing between themselves – unless one can show evidence of domestic violence.

Charlie Gard’s parents did not have legal aid and could not afford to pay for a lawyer. They were fortunate to find lawyers prepared to act for nothing. Francis J commented at para 17 of his judgment:

it does seem to me that when Parliament changed the law in relation to legal aid and significantly restricted the availability of legal aid, yet continued to make legal aid available in care cases where the state is seeking orders against parents, it cannot have intended that parents in the position that these parents have been in should have no access to legal advice or representation. To most like-minded people, a National Health Service trust is as much an arm of the state as is a local authority. I can think of few more profound cases than ones where a trust is applying to the court for a declaration that a life- support machine should be switched off in respect of a child.

‘Rights’ which cannot be enforced in court because the parents can’t afford legal representation and don’t understand complicated law, are no rights at all.

The adversarial system and the standard of proof

An enormous problem – and one which I think firmly underpins most of the criticism and distrust of the family law system – is that an adversarial process which relies on oral evidence and cross examination may work tolerably well in circumstances where the disputed facts are often backed up by contemporaneous written documents. But it is often very difficult to test ‘evidence’ that is no more than the assertions of two people. Particularly when these people are giving an account of their relationship, built up over many years and which may have been experienced/witnessed by only them.

In cases where parents make allegations against each other of sexual or violent abuse, it is my view that waters have been seriously and dangerously muddied by the requirement that police forces were to commence investigations into sexual assaults on the basis that they ‘believe’ the complainant (who is usually described as the ‘victim’ ).To have as a ‘starting point’ a belief that one person is telling the truth fundamentally poisons the integrity of any investigative process. See the 2016 report of Sir Richard Henriques into the failures of the investigations of the Metropolitan police in ‘Operation Midland’.

Parents in care proceedings have raised serious criticisms about the standard of proof in care cases being on the ‘balance of probabilities’ – pointing out that removing a child from an unwilling parent is every bit as horrible as sentencing a parent to a prison sentence and the standard of proof should therefore meet the criminal standard of ‘beyond reasonable doubt’.

What are rights worth if they can be discarded by the state on a low standard of proof?

Enforcement of established rights

However even a ‘blameless’ parent who is vindicated at the conclusion of a finding of fact may not find that their ‘rights’ translate into any kind of action by the courts, because of the likely impact of such action on the emotional well being of the child.

This is often the argument used against removing a child from an adoptive placement to return to birth parents – but the UK has been criticised for failing to give sufficient recognition to the child’s right to be brought up by his or her birth parents.

What are ‘rights’ worth if they are not even considered, because ‘paramount’ is interpreted as ‘exclusive’ or ‘overwhelming’ ?

 

How do we establish what is in a child’s best interest if parents don’t have the ‘right’ to determine this?

This brief discussion above about the limits of parental autonomy to determine outcomes for their children highlights that as a society we have agreed that parents do not have the right to subject their children to whatever indignity they wish in the name of ‘family life’ or ‘respect for parents’.  The court will therefore have to hear evidence and make a decision based on the evidence before it.  The court is faced with a truly difficult job when before it come two parents who argue from entirely different perspectives about the fitness of the other to parent.

I have always supported the need for the state to intervene to protect the most vulnerable members of its society. Children are not the chattels of their parents; some children do need to be ‘rescued’.

But the state and its officers have to tread carefully around the ‘family’ and how they chose to intervene in its structures. The emotion and interest in the ‘rights’ of parents in the aftermath of proceedings around Charlie Gard demonstrate a clear need for further discussion and exploration of the nature and extent of parents rights. A system that appears to horrify a large proportion of the population subject to it, has either not been well explained or should not be defended.

 

‘Adoption by Stealth’ – the dangers of rhetoric and the law of unintended consequences

 

On July 10th the Family Rights Group launched their report ‘Co-operation or Coercion? Children coming into the care system under voluntary arrangements’ .

I wrote a brief summary of the speakers’ contributions and the report’s recommendations for The Transparency Project.

I commented that this was a very important report, with very sobering findings and it demanded an immediate call to action. It was very clear that parents were finding themselves subject to ‘soft coercion’ when agreeing to have their children accommodated under section 20; that no one took the time to explain to them what was going on and they didn’t realise that they kept their parental responsibility and could remove their children at any time.

This is a particular problem when looking at ‘foster to adopt’ placements. The aim of such placements is to ensure that more children are placed with their permanent carers as soon as possible on a fostering basis while the LA seeks a placement order from the courts.  This is a key example of the tensions inherent in protecting both parents’ and children’s rights.

Parents have a ‘right’ to a fair hearing under both Articles 6 and 8 of the ECHR; an opportunity to make their case and show evidence to the court that they can parent their child. But children have a ‘right’ not to suffer the harm that almost inevitably follows frequent placement between parents, foster carers and adoptive parents.

How do we balance those rights? I agree, to ask parents to ‘give up’ their babies via section 20 into a foster to adopt placement means they are signing up for something very significant, at a time when they are very vulnerable and without any scrutiny from the court or any real access to legal help. It may well be very difficult to ‘unpick’ such a placement as the months go by.

Parents who are involved in care proceedings have autotmatic access to fully funded legal representation, regardless of their wealth or the perceived merits of their case – which is absolutely how it should be. Parents whose children are accommodated under section 20 however, are most likely to only get independent legal advice if they can afford to pay for it, or if they can access help from a charity such as the Family Rights Group. Sometimes a LA can be prevailed upon to pay for a few hours chat with a solicitor but its easy to see how this could be insufficient as a real help to parents. The courts have been quick to condemn what they see as abuse and bad practice around use of section 20 as it removes decisions about where children live from any kind of court scrutiny.

Thus, the lack of understanding about section 20 is clearly a real and significant problem, as detailed by the report’s findings. Articles published in the Guardian on the day of the launch categorised this as ‘adoption by stealth’ and that parents were ‘tricked’ into handing over their children.

I understand that this is the reality of the problem as many parents will see it. I appreciate that journalists have to write in compelling and punchy language to engage their readers. But this rhetoric around such a sensitive issue troubles me.

What is the law about making an adoption order?

The articles did not make any mention of section 21 of the Adoption and Children Act 2002 which sets out clearly that ‘adoption by stealth’ is not a creature known to our law.  A child cannot be placed for adoption unless a placement order is made. There must be court scrutiny of this process and the parents will be involved in this court scrutiny.

The court cannot make a placement order unless:

  • the child is subject to a care order OR
  • the court is satisfied that the conditions in section 31(2) of the Children Act 1989 are met OR
  • the child has no parent or guardian

The conditions set out in section 31(2) are those required to exist before a court can make a care or supervision order:

  • that the child concerned is suffering, or is likely to suffer, significant harm; and
  • that the harm, or likelihood of harm, is attributable to—
    • the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
    • the child’s being beyond parental control.

This is a high threshold – for obvious reasons. Taking children away from their families is recognised as the most serious interference with people’s family and private lives; it has life long consequences for all concerned.

Section 22 of the Adoption and Children Act sets out that a local authority must apply to the court for a placement order in respect of a child if:

  • the child is placed for adoption by them or is being provided with accommodation by them,
  • no adoption agency is authorised to place the child for adoption,
  • the child has no parent or guardian or the authority consider that the conditions in section 31(2) of the 1989 Act are met, and
  • the authority are satisfied that the child ought to be placed for adoption.

EDIT 13/07/17 – I am grateful for the contributions of Tom Perkins, via Twitter

And its not just the ACA that operates as a fetter to arbitrary State interference or ‘stealthy’ social workers. As Tom points out, the SW profession itself is very alive to these issues of concern :

I feel the FRG review was a missed opportunity to promote the growing movement toward ‘Co Design + Co Production with young people and their parents … I was disappointed there was no reference in the FRG report to the DFE funded Guidance produced by BAAF in June 2013 which provides a very clear and easy to understand guide to the entire Foster to Adopt process. For example, compare P 9 of the FRG report and P8 of the BAAF guidance…..there is a world of difference. 

Tom points out that there is now a ‘very high level’ of scrutiny around section 20 which makes it very difficult for social workers to act ‘dishonestly’. Not only have individual Judges issued guidance on these of section 20 in their areas (see for e.g HHJ Bellamy and HHJ Wildblood QC) some have gone even further and have requested information about the LA’s section 20 population. Tom comments:

[The Judges] demanded and have been given access to the entire S20 population and demanded the following: Details of all new S20 admissions; what are the LA plans at 6 weeks? A detailed report from the LA if there is not a plan to come to Court. A detailed plan for each child who has been S20 longer than 6 weeks. 

This has forced those LAs to look hard and long at their S20 population and the reasons for the original admission. It would be hard to imagine that all aspects of the S20 admission – placement – assessment – outcome – long term plan – parental involvement / agreement / permissions etc., have not been scrutinised. Similarly, a number of LA’s have been revoking PO’s that have reached 12 months and the child not placed for adoption. The Care Plan has been changed to CO + LTF. Similarly, OFSTED routinely examine the S20 population during their monitoring visits / inspections. There is no mention within OFSTED reports of any concerns about parents not knowing / not signing S20 agreements….

For further discussion about the law and practice around adoption see these posts about when adoption is considered necessary. 

Why do I worry?

It would have been reassuring to have had at least some recognition of and discussion of this legal framework in both the Guardian articles and in discussions at the launch of the FRG report. Because without it, and resorting to such phrases as ‘adoption by stealth’ and ‘tricked’, there is a risk that the very dangerous narrative promoted by John Hemming and others gains traction and parents continue to be vulnerable to the bad (and expensive) advice they offer.

Hemming and his acolytes routinely dismiss family lawyers as ‘legal aid losers’ or ‘in the pocket of the LA’ and parents are advised (quite literally) to ‘flee’ the country rather than engage, thus ensuring they are denied access to help and representation that could keep their families intact.

The Family Rights Group is to be applauded for the work they have done and continue to do for parents and children. However, they cannot take the place – and I imagine would never suggest they could – of fully instructed, fully funded lawyers for whom the court arena is a second home.

I am glad that such issues are being discussed, that a brighter light is being shone on bad practice and historic failings. I hope to encourage these kind of discussions with the performance on September 23rd at the Arnolfini in Bristol ‘Happy Families – the conversations we are not having about adoption’

But it would be an enormous shame if one unintended consequence of this debate was to create even deeper distrust and fear of the legal system which remains the only true safeguard against the arbitrary interference of the State.

As Sir James Munby commented at the launch of the report on July 10th

https://twitter.com/SVPhillimore/status/884465934525759488

When they were bad – they were horrid. The dangers of unregulated McKenzie Friends

On 5th January I made a formal complaint to John Hemming about the activities of the Justice For Families group, [JFF] of which (I assume) he remains the Chair. I raised a significant number of very serious concerns, including that the activities of JFF put vulnerable parents and children at risk of harm by facilitating or encouraging them to leave the country rather than face care proceedings.

I have never received a reply to this complaint. Hopefully, now that Mr Hemming is now freed from the demands of his time spent electioneering, he can devote some time to answering the very serious issues I raise about how JFF operates and how it makes money.

I raise this matter again for two reasons. First because of the recent publication of research in McKenzie Friends which worryingly, establishes that they are more active outside the court room, where presumably they are subject to very little scrutiny – or none at all.

Second, because I have received the following information from a Ms Green about Tim and Julie Haines, the two most active and high profile ‘advisers’ for JFF.

I quote Ms Green’s email to me:

I contacted Julie Haines through a Facebook group. She and her husband Tim Haines met with us claiming that although they don’t cost as much as a solicitor, they would need to be paid as they “don’t work for nothing” and need to “pay their bills”.

However, once meeting with the Haines, they soon went through everything and said there would be a very good chance they could get our children back but there would be a cost. That cost was £1,500. We paid two payments of £500 as we met with them at least 2 maybe 3 times.

These payments paid for a pathetic attempt at a “grounds of appeal” and a “Skeleton argument”. Had we have got a hearing at London’s RCJ we would have had to pay another £500. However our appeal was refused.

We didn’t appear to hear from them after that and we knew they still had the major documents (doctors reports, professionals witness statements,etc). We asked for these back and they said at first they would see what the cost was to send them back and insisted they had a tracking number which already meant they had paid for it. We waited week and nothing. Two weeks…. decided to contact them and they insisted it had been posted and that they would check with their post office. I asked for the tracking number only to be ignored.

My texts and WhatsApp messenger soon got blocked. So we contacted them on facebook. Told them we wanted our documents back and began to tell other members on facebook to warn them only to be abused and blocked then removed feom the group. I found a few others who had encountered the same problem with large payments for next to nothing work (we printed everything) and then the theft of our documents. My husband then contacted Tim and all he got was denial and lies. Then told people on facebook our case “was never going to be successful” yet soon took our money and built up our hopes knowing we lent this money from my pensioner mum and that money was the last of my dad’s from when he died.

They insisted we go to “bank of mum and dad” but they fooled us into thinking we would win this and we didn’t. We travelled to [REDACTED] to them for all this. As much as we love our daughter so much, we now wished we didn’t bother to go to the Haines as we were just desperate targets.

We threatened [to go to] the police and they told us to go ahead, that they wouldnt find anything there. Told us also is we persisted to “harass” them, they would take us to court. So they now go on to make thousands from desperate families for rubbish knowledgeless court bundles and empty promises.

 

In 2010 I had a run in with the Information Commissioner after I left two files of confidential documents in my car. They were stolen after my car was broken into. I was very lucky to escape with a reprimand, rather than the £40K fine which could have been imposed on me as a data controller. The ICO told me that if this happened again, my career would be over.

And this is absolutely as it should be. If I want the status, the interesting work and the money that comes from holding myself out as someone capable of dealing with people’s confidential information and advising them at the most difficult times of their lives, I have to hold myself out to be accountable. If I fail to meet the necessary high standards demanded by my profession. I should be removed from that profession, to protect those vulnerable people who might otherwise fall victim to my incompetence.

So what redress do vulnerable parents have against JFF or the Haines? Are they registered with the ICO as data handlers? What processes does JFF have in place to keep confidential information safe? What is their charging structure? Are they insured? What training do either Tim or Julie have?

We don’t know the answers to any of those questions. JFF and the Haines are utterly unaccountable, offering ‘services’ to the desperate and vulnerable with no guarantee of quality or redress if they get things wrong.  This is simply wrong on every level.

As I doubt very much Mr Hemming will ever answer my questions, perhaps he and the Haines can do what they have been threatening for over a year – take me to court for ‘defamation’. So these issues can be ventilated in open court and a decision made about who is telling the truth.

EDIT – GUIDANCE FOR THOSE CONSIDERING APPROACHING A MKF

See this article I wrote with Paul Magrath and note in particular the questions we think you should be asking:

What questions should I ask?

For those who cannot afford legal representation however, a good quality McKenzie friend can be a real help. We suggest that any one looking to get help from a McKenzie friend should consider the following questions and issues.
1.What are their credentials? Have they been trained in any related or relevant profession (not law, but maybe accountancy, police or social work)?
2.If they charge, how much are they charging and for what?
3.Have you checked whether you could get a similar service from a lawyer? (Some lawyers will “unbundle” services to provide, say, a consultation to help identify the issues in the case and how best to prepare the paperwork.)
4.What level of experience do they have in the kind of proceedings you are engaged in?
5.Can they provide references? Does their website include testimonials and, if so, can you check them?
6.How did you find them? (Or did they find you?) Have you googled them, checked Facebook, LinkedIn and other social media for comments by or about them?
7.Do they have an agenda? If they are from a volunteer organisation, what is their reason for volunteering? Are they promoting an agenda, and if so, does that accord with your case or might it be a distraction?
8.Have you searched on BAILII or other legal websites to see whether they have been cited or referred to in judgments – either adversely (such as those quoted above) or with approval (though it is rare for judges specifically to mention McKenzie Friends unless they cause trouble).

Further reading

AEY v AL (Family Proceedings Civil Restraint Order) [2018] EWHC 3253 (Fam) – discussion of how and when civil restrain orders can be made to prevent unreasonable litigators taking up the court’s time.

 

The Death of Family Mediation

Family Law Mediation: Dead Man Walking

This is a post by Sarah Phillimore from a talk delivered to the Western Counties Branch of the Chartered Institute of Arbitrators on 27th April 2016

In the ‘Virginia Lawyers Weekly’ from April 2016 I read an interesting article by Chris Macturk.

In Tomorrow’s Lawyers, Richard Susskind writes, “It is exciting and yet disconcerting to contemplate that there is no finishing line for IT and the Internet.”
Susskind’s observation is equally applicable to the future of family law mediation. Like the Internet itself, there are ever-expanding and seemingly endless options to consider — options born of rapidly evolving applications of new and developing technology and clients’ desires for more access to a greater diversity of dispute resolution opportunities at a lower cost.

Clients’ desires for more access to a greater diversity of dispute resolution opportunities at a lower cost

That one sentence for me sums up the potential problem with promoting mediation upon family disputes. So many assumptions are packed into one short sentence. I think unpicking those assumptions will help me explain to you why I have problems with mediation offered as the solution in acrimonious family law problems.

The drivers behind the push for mediation

Mediation as a form of dispute resolution has a long pedigree. Mediation has for many thousands of years been recognised as a much more palatable option than fighting in out in court. Confucius, who died around 479 BC considered that the “first best” and socially proper way to settle disputes, used by the “superior man,” was by the method of mediation, following the ethics of the “middle way.” This consisted in bringing the disputants to something they both approved as the settlement of the dispute, by means of an intermediary.
That for me encapsulates the heart of mediation as I understand it – it is something the participants willingly engage in, with genuine desire to reach a settlement. The mediator does not impose upon the participants a framework other than basic courtesy. The participants will discover in their interactions a solution they can both live with.

This ancient wisdom began to be promoted in the legislative framework around family law with Part III of the Family Law Act 1996 which required those who wanted public funding to at least consider the prospect of mediation.

This was re-stated in the Access to Justice Act 1999 where the criteria set out in the funding code shall reflect the principle that in many family disputes mediation will be more appropriate than court proceedings.

Under section 10(1) of the Children and Families Act 2014, it is now a requirement for a person to attend a Mediation Information and Assessment Meeting [MIAM] before making certain kinds of applications to obtain a court order. There are exemptions to the requirement to attend for an MIAM and I will have a look at these later, as I think these are in interesting window into explaining how and why mediation will often not be the right option in family disputes.

However, even though few could disagree that it must be better to resolve one’s disputes with the aid of a ‘neutral peacemaker’ rather than embark on bitter and expensive legal proceedings, I think it would be naïve to assume that various Governments have promoted mediation because it is less emotionally stressful for participants. It is clear that the primary driver behind the push for mediation is that it was much cheaper than litigation.

As Chris Macturk points out, online dispute resolution has been remarkably effective in dealing with relatively uncomplex commercial disputes and – excitingly – has required no human intervention:

Online Dispute Resolution (ODR) has existed for many years, with perhaps its origin and infancy credited to eBay’s ODR process through SquareTrade which began in 1999. SquareTrade’s technology provides the opportunity for parties to resolve disputes concerning eBay purchases with or without the aid of a mediator.
A staggering number of disputes have been resolved using ODR. Modria, a newer ODR provider, states on its website, “Our founders created the online dispute resolution systems at eBay and PayPal which have processed hundreds of millions of disputes, 90 percent through automation – without human intervention.” While technology can increase access to justice at a lower cost, resolving a dispute over whether a Cabbage Patch doll was really “like new” doesn’t seem to compare to the difficulties presented in disputes involving real children. Even so, ODR is currently being offered and attempted for family law matters.

And here we have the roots of the problem. That far too much weight is placed on mediation as a solution in acrimonious family disputes. It cannot bear this weight and it buckles.

LASPO and what happened afterwards; mediation abandoned

To put the history of mediation applied to family proceedings squarely in context, we need to look at the Legal Aid, Sentencing and Punishment of Offenders Act 2012. If you want a clear summary of the genesis of this Act and its ‘seismic impact’ I recommend the ICRL blog

In essence, this Act removed large areas of law from the scope of legal aid, including private law disputes around children. The most notable impact of this has been the rise in numbers of litigants in person (LiPs), whose lack of legal knowledge and training has in turn caused two further developments;

  • cases involving LiPs take far more judicial time to resolve;
  • removal of insured and regulated lawyers has caused a considerable growth in the number of paid McKenzie friends (people who can get the court’s permission to attend to help a LiP by –for eg. Taking notes. They can address the court but only with permission). Some of these people are good. Some are terrible. None are regulated.

Matthias Mueller reported in Family Law in 2016 . The latest Family Court statistics published today (31 March 2016) show that the proportion of cases with unrepresented parties is continuing to rise.

The figures published by the Ministry of Justice, covering the period of October to December 2015, show that around the time that the LASPO reforms were implemented there was a marked increase in the number and proportion of cases where neither party are represented, with an equivalent drop in the proportion of those cases where both parties were represented.
The proportion of parties in private law cases without legal representation currently stands at 36%.
A report published earlier this week by the Citizens Advice Bureau, Standing alone: going to the family court without a lawyer, found that 9 in 10 people forced to represent themselves in court claimed that it had a negative effect on at least one other aspect of their life.
Last year the Justice Select Committee highlighted how the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is causing enormous strain on the family courts and poorer outcomes for those going through the justice system. It concluded that the changes to civil legal aid have meant that many people, including those that are most vulnerable, are no longer able to access justice.

But none of this was supposed to happen. What was supposed to happen is that people in disputes over their children would take to mediation. They would finally realise there was a much better way to resolve their problems by expensive adversarial fights in court. The reality however, was starkly different.

Mediator Marc Lopatin had a look at the statistics for an article in Family Law on 24th January 2014:

In 2013/14, the number of mediation starts plummeted by 38% following the removal of legal aid from family lawyers for most family law matters.
Practitioners will recall that in pre-LASPO times lawyers first had to make a compulsory referral to mediation before being allowed to access the next pot of legal aid. As a direct result, there were 13,609 mediation starts in 2012/13. With that requirement removed, this fell to 8,400 in 2013/14.
Not surprisingly, the fall in numbers gave way to a massive £16.8 million under spend by the MoJ on family mediation in 2013/14. One would imagine this to be extremely embarrassing for MoJ top brass given this is one saving they weren’t looking to make!
… Another illustration of policy failure is the paltry amount paid out to family lawyers for supporting clients at mediation with legal advice. The MoJ paid out a grand total of £9,000 to lawyers claiming ‘Help with Mediation’. That’s less than the price of going to court for a many private divorce client. And it should also be a cause for concern given decisions taken at mediation need be informed.
The answer is simple: pay legal family lawyers an acceptable sum to support mediation as a legal adviser. At present, the LAA offers lawyers £150 to perform this function. No wonder unbundled services replaced referrals to mediation in 2013/14.

Taken as a whole, the data makes the clear case for voluntarism over compulsion when it comes to success at mediation.

So, without lawyers to shepherd clients into mediation, their numbers plummeted by 38%. Those parents deprived of lawyers, were NOT turning to mediation. They were going to court as litigants in person or turning to paid McKenzie friend to help them in court.

The Cafcass statistics bear this out

We can see the impact of LASPO – court cases fall. But then rise again.
• Between April 2013 and March 2014 Cafcass received a total of 46,636 new private law cases. This figure shows a 2% increase compared with the previous financial year.
• Between April 2014 and March 2015 Cafcass received a total of 34,119 new private law cases. This figure shows a 27% decrease compared with the previous financial year.
• Between April 2015 and March 2016 Cafcass received a total of 37,415 new private law cases. This figure shows a 10% increase from the 34,119 cases received in the previous financial year.
In March 2017, Cafcass received a total of 3,907 new private law cases. This is a 16% increase on March 2016 levels. 3,907 rejecting mediation.

What was hoped for – didn’t happen. Why did parents not embrace mediation?
There seems little doubt that mediation by 2013 was well established and known to be successful. For example, in England and Wales, the Civil Mediation Council (CMC) was established in 2003 to promote the merits of commercial and civil mediation, and to represent the interests of mediation providers. Currently, the CMC has a membership of some 70 provider organisations and 400 individual mediators. National Family Mediation asserts that its providers deliver around 30,000 mediations in England and Wales per year, with full agreement being achieved in 83% of cases.

The Family Mediation Council describe mediation simply as:

Mediation can help you stay in control. No-one will make you do anything against your wishes. The mediator will help you find a solution which works for you both and explain how you can make an agreement legally binding.

This sounds great. Who could argue with that? But as we can see from the statistics, there is a worrying indication that people are not seeking mediation but would apparently prefer to be a litigant in person in an adversarial and frightening court environment with which most will be entirely unfamiliar. Why on earth do people do this to themselves?

MIAM Exemptions

The exemptions to the MIAM requirement I think provide a useful starting point. These are an interesting blend of practical and emotional difficulties. They emphasise that family disputes encompass a very wide range of personal, environmental and external difficulties – of violence, poverty, lack of transport for example. These are highly unlikely to feature in any commercial dispute.
• You, or the other party, has made an allegation of domestic violence against the other supported by clear evidence, for example either a police investigation or an injunction being issued within the last 12 months. (some mediators tell me they would take these cases; I think they are fools. An abusive person is simply seeking an arena to continue abusing – mediation provides a great arena! Mediation where there is significant imbalance of power is dangerous)
• The application you want to make to the court relates to other family law matters which you are currently involved in.
• An application to the court needs to be made urgently because there is a risk to the life or safety of the person who is making the application (the applicant) or his or her family (for example, their children) or his or her home.
• The dispute is about money and you or your husband, wife or civil partner (the respondent) is bankrupt.
• You and your husband, wife or civil partner are in agreement and there is no dispute. [???]
• You do not know where your husband, wife or civil partner is.
• You wish to make an application to the court but for certain reasons you don’t want to tell your husband, wife or civil partner in advance.
• You are currently involved with social services because there are concerns about the safety and wellbeing of your child or children.
• You can’t find a mediator within 15 miles of where you live, or you have contacted three mediators based within 15 miles of where you live and you are unable to get an appointment with any of them within 15 working days.
• You or your partner cannot access a mediator’s office because one of you has a disability. However, if the authorised mediator can provide the appropriate facilities then you will both still be required to attend the meeting.
• A mediator shows on the court form that mediation isn’t suitable, for example the other person isn’t willing to attend a MIAM.
• In the past four months you’ve tried mediation but it hasn’t been successful. A mediator has to confirm this and state that mediation is not the best way for you to resolve your dispute.
• You or your partner do not normally live in either England or Wales and therefore cannot be considered as “habitually resident“.

To ‘make’ mediation work in many family disputes I think runs a serious risk that mediation will have to develop into something very different and will need to move away from its guiding principle that of voluntary engagement. So whatever it becomes, it won’t be mediation.
Have a look at the Australian experience, in moving mediation on line. Thanks again to Chris Macturk:

Australia’s Family Law Act 1975, as amended by the Family Law Amendment (Shared Parental Responsibility) Act of 2006, provides that all persons who have a dispute about children must make a “genuine effort” to resolve that dispute by family dispute resolution before they can litigate.

The potential benefits of such a law aside, FamilyResolve allows parties to participate in a live, three-party videoconferencing session using a link sent via e-mail in satisfying this requirement. Further, with the use of technology, the mediator has a considerable range of options to help control the mediation session, options which would not otherwise be available in a face-to-face meeting. According to FamilyResolve’s website, “The mediator has the technical capability to allow both parties equal speaking time, to mute a party, so the other party can speak uninterrupted, as well as hide [a] participant’s visual web- cams.”
This is quite a shift from face-to-face mediation and begs the question if a mediator should be able to press the “mute” button or “hide” one of the parties to a mediation.

Whoa. Wait a minute. This isn’t mediation as I understand it. Refusing to allow one party to speak – to ‘mute’ them – seems to me highly inimical to what mediation is supposed to be about – providing a forum for the participants to identify their own solutions.

And I am afraid, this is the beating heart of most difficult family law disputes. It is that people don’t feel heard. And when people don’t feel heard, they often shout louder and dig their heels in harder. And they are often completely irrational, albeit genuine. Family law disputes strike at the very essence of our humanity. You are not just dealing with an argument about who drops the children off where and when. You are often dealing with the whole toxic emotional fall out of a relationship that crashed and burned, taking with it parties’ self respect and hopes and dreams for their entire futures. It’s big! It’s heavy!

Go back to what Marc said, when looking at the woeful post LASPO stats: Taken as a whole, the data makes the clear case for voluntarism over compulsion when it comes to success at mediation.

If what the government was hoping was that mediation could take of the role of state coercion when parents wont agree about what’s best for their children then what we have ended up with is a really frightening example of the law of unintended consequences. We now appear to have the worst of all possible worlds; disputes over children conducted by litigants in person in adversarial court proceedings.

What can we do about it?

Am I encouraging people to rush off to court? Of course I am not. I am not attempting some simplistic binary reduction‘mediation bad’ ‘litigation good’. The court environment is probably the last place that angry, upset people should be. But this idea that family mediation can work only if parties are ‘muted’ or otherwise coerced into attending is to me quite offensive.

Some cases are going to require the formality of the court arena, with both sides being allowed to argue their case and then a judge imposing a decision upon them, with the power to enforce if necessary. Mediators aren’t counsellors. Some people simply bring into the room with them too much emotional pain or denial to allow a mediation to proceed in any kind of constructive way.

And my own professional – and I am sorry to say personal – experience of mediators who claim to be highly skilled at managing this kind of situation, is that they are kidding themselves.

I conclude with the words of family law blogger Lucy Reed

I have many criticisms of how mediation IS – of the rigour and cost of its training, of the effectiveness of its regulation and of its business model and of its suitability for all cases – but those are all things about the *state* of mediation not the principle (or the people). I emphatically recognise mediation as a valuable and effective solution for many families (although not all). There is a place for both law and for mediation. We do not need to set ourselves up in opposition.
Indeed, I recall from my mediator training, in between the torture of neuro-linguistic programming and egg-sucking flipchartery (lawyers are allergic to flipcharts, this is our greatest weakness), we were told that mediation worked best in the “shadow of the law”. This is so crucial. People reach consensual resolution (in or out of court) on the basis of an informed understanding of their options, the risks and the alternatives. The two options of mediation and law are symbiotic not antipathetic (and of course there are many others such as arbitration).
I want to give a small illustration of my perspective of the current climate in which mediation operates before I go on. I recently dealt with a FHDRA at a court running an in court mediation scheme. I won’t give detail but suffice to say that the “voluntariness” of the mediation involved us being told the court had decided we were going to mediate, and the confidentiality of the mediation was entirely breached when the mediator told the court exactly what had transpired without the consent or prior notification of the parties. That is two of the pillars of mediation ridden roughshod over. This I hope is an aberration, but it is for me indicative of how much we’ve lost our way with our evangelism about the promotion of mediation as “the answer”. Mediation is brilliant for some and disastrous for others.

I suppose that all I am asking, is all I ask in every field of human endeavour; that from time to time we lift our eyes from our agenda and look around and ask ourselves honestly – what do we want to achieve? And what is the best way to achieve it?
To accept that mediation is cheap and successful indeed – but only where parties enter into willingly and both desire to reach an agreement. To force mediation upon the unwilling or the angry is a dreadful corruption of the very essence of mediation.

Hewson: We have a problem – online harassment and how we just don’t deal with it.

EDIT DECEMBER 21st 2019. 

On Wednesday 18th December 2019 Ms Hewson was suspended from practice for 2 years with immediate effect after admitting two charges of professional misconduct. See this article from Legal Cheek for more details. 

I am not ‘glad’ this happened and I am certainly not ‘glad’ it took so long for the profession to do something about it. But I hope its over now.  If I continue to face harassment and abuse from this or any other individual that I can identify, I will take action in whatever arena seems the most suitable. 

I support freedom of speech. It is however subject to immediate and obvious limitations and the civil and criminal harassment laws are just one. 

This is a post by Sarah Phillimore. It is grimly apt that I publish this during National Stalking Awareness Week. 

Too long; didn’t read – SUMMARY

No doubt some will dismiss what follows as trivial:  ‘handbags at dawn’ type spats or an amusing potty mouthed barrister. Judge for yourself. I set out below the ‘timeline’ I prepared for the police covering what happened between August 2016 – March 2017. Its worth noting that from 4th September 2016 to early March 2017 I had no contact with Ms Hewson on or off line. so whatever was fuelling her, it wasn’t direct provocation from me.

I hope that the majority, after reading what I set out here, will agree with me – something very wrong happened here. It should have been dealt with, it should have been stopped. It was not.

This has potentially very serious ramifications. Ms Hewson’s continued pubic vilification and intimidation of anyone who displeases her, must have the impact to both seriously diminish public trust in the Bar and cause real pain and suffering to those individuals she targets. As little or no help is forthcoming from any outside agency, If her victims respond in kind out of fear or frustration, they will themselves be labelled  ‘abusers’. That is exactly what happened to me; the police have been clear I have lost my status as ‘good victim’ by responding on occasion.

The failure or inability of any external agency – be it Chambers, the BSB, the police or Twitter itself – to take any kind of effective action to control this behaviour, shines an uncomfortable light on our collective inability to respond to abusive behaviour in the internet age. Social media is hijacked by those who wish to display and promote their own personality disorders. We witness yet another example of the slow, lingering death of public discussion.

But as with every harsh experience, I have learned some valuable lessons. For example, I have learned that the law will provide me with protection only if I can afford to buy it. That my professional obligation to refer wrong doing to my regulator means nothing, as they will not act and will not explain their failure to act.

EDIT The BSB finally replied to me at 17.46 today. They do not accept they failed to act with expedition in investigating my complaint. They had to take time to consider whether or not repeatedly calling me a ‘cunt’ on line was Ms Hewson exercising her right to a private life. I will treat this justification with the silent contempt it deserves. 

As I cannot afford civil litigation – this is my response. This will be my final word on the matter. I have gazed into the Abyss for far too long already. There are some very sad and damaged people online and they do enormous harm to others – and themselves.

I hope that this post may help some others feel less alone. I hope it may also prompt some much needed thought and discussion about exactly how we manage our interactions on line. This online world is far too rich in opportunity for learning and discussion to simply hand over to the rule of the mad, bad or sad.

EDIT 14th March 2018 I am pleased to report that Hewson’s attempt to have the Metropolitan police deemed ‘irrational’ and unlawful in their issue of a ‘PIN’ or Police Harassment Letter, was dismissed – the court confirming that it is important to remember that Article 10 is a qualified right. See the judgment here. 

Truth, Lies and Intimidation

A brief background

In May 2016 I made the rookie mistake of engaging with Barbara Hewson on line, criticising her view that family lawyers were all collusive and inefficient.  I wrote a blog post about it .

Hoaxtead Research also wrote a very clear summary of our ‘dispute’ and how my mild banter and criticisms were met with a barrage of offensive and untrue on line publications from Ms Hewson, which she shared far and wide, purposefully designed to frighten and intimidate me.

So far, so internet. But it will stop soon I thought. This person is a professional. Surely she can’t keep doing this? But she did. After 7 months and after I had spent nearly £2K on solicitors letters, made numerous complaints to her Chambers, 12 complaints to Twitter, 3 complaints to the Bar Standards Board, and finally to the police, who issued a harassment warning notice against her in March 2017 – she is STILL going strong, like a demonic Duracell bunny.

See the timeline below for further detail, but a non exhaustive list of Hewson’s abusive behaviour directed at me since August 2016 to date includes:

  • repeatedly publishing my photograph with insults attached  – ‘fuck off madam’
  • linking insults directly to and about my Chambers
  • foul, abusive language – for example, calling me a ‘nasty C**t’
  • encouraging one of her criminal associates to email me and a senior member of my Chambers directly and threaten to report me to the police
  • publicly discussing my sexuality on line with a man who I know to be a sexual abuser of women and girls (this man then takes to Facebook and repeats that I am an evil lesbian and ‘pure shit’)
  • continually making references to my daughter when she knows full well that her tweets are ‘liked’ and ‘retweeted’ by at least one convicted and unrepentant paedophile.
  • inciting her followers to target me – ‘will no one rid me of this McCarthyite barrister?’
  • targeting anyone else she perceives as supporting me and publishing abuse directed at them via Twitter or sending threatening emails to them or their employers.

I have been subject to serious abuse, but others have fared even worse. They have wished to retain their on line anonymity but been ‘outed’ by Ms Hewson who has no problem at all with posting people’s real names and email addresses, despite her very keen appreciation that her own privacy be respected. One particularly repulsive example of this kind of behaviour was her repeated publication of photographs of the children of at least two of her adversaries, with insulting comments attached.

I note that some of those people on the receiving end of this, have themselves behaved in a reprehensible way and subjected Ms Hewson to repeated on line harassment and trolling. I do not condone this behaviour from anyone. I do not act ‘in support’ of them or at their behest – as Ms Hewson consistently alleges. I knew nothing of them at all until June 2016 when I began to take a keener interest in the nature and extent of Ms Hewson’s on line abusive behaviour.

Ms Hewson has a right not to be abused on line. Anyone who does so is wrong and should face consequences. However, to behave as she did was without any kind of rational justification, no matter what her claimed provocation. Many of the people she targets on line are vulnerable and have mental health difficulties. She surely has the financial and intellectual resources to seek proper, and less public, redress against those she considers to have defamed or harassed her.

Her justifications for her behaviour are varied and weak; Ms Hewson has repeatedly claimed the defence of ‘freedom of speech’ when insulting and defaming me, or that she is indulging in ‘parody’ or ‘satire’. I should not have had to spend nearly £2K of my own money to point out that I do not accept she can legitimately claim ‘satire’ for discussing my sexuality in public with a man known to have sexually and physically abused women and girls. Further, it is simply absurd to claim – as she does – that  ‘freedom of speech’ an absolute and unrestricted right. It never has been, and in any kind of healthy society never could be.

She has claimed that when she insults me it is as ‘writer’ not as a barrister – but recent BSB guidelines on use of social media for barristers has hopefully kicked that one into touch. We are bound by Core Duty 5 AT ALL TIMES – not to behave in a way which would cause public trust in the profession to be diminished.

On January 30th 2017 she extended her harassment of me to the national press making a variety of dishonest assertions to the Times, including that she had reported me to both the police and the BSB. This was a lie. But no doubt one believed by those reading the article, to the further detriment of my professional reputation and integrity. The Times published a further article on April 12th detailing allegations that she had sent death threats to a student. Ms Hewson is apparently going to sue the Times for defamation but the time of publication (April 25th) I have heard nothing further about that. I have contacted the Times and offered my support in defending any such action. Because everything I say is true.

A big part of why this has been so difficult to bear is the absolute breathtaking hypocrisy demonstrated by Ms Hewson. Whilst holding herself out as a warrior for Freedom of Speech and writing for the online journal Spiked whose guiding principle is ‘freedom of speech – no ifs or buts’ , Ms Hewson has been assiduous in her efforts to silence those who disagree with her by threats, abuse and other forms of intimidation.

 

A failure by Regulators to Regulate.

Unpleasant and abusive people on line are common. The real issue here, for me at least, is what this sorry saga has revealed about the ability or willingness of the BSB to do its job.

I have made three complaints; on 14th September 2016, 7th February 2017 and 6th March 2017. The BSB have requested I get further evidence from ‘persons of standing’ to back up my complaints. In light of how Ms Hewson behaves, it is unsurprising that none of the 9 people I asked felt able to help me. Some expressed serious concerns about the impact on either their mental health or their employment, should they make complaint against Ms Hewson and risk incurring her anger. I am sad that I do not apparently count as a ‘person of standing’.

Ms Hewson’s decision to take to the national press in her campaign of intimidation, led to the second of my complaints to the BSB in February 2017. However, my first was apparently not even put to Ms Hewson until the 30th January 2017, nearly 5 months after I made it. 

At the time of writing I have not the foggiest idea what is happening to any of my complaints as the BSB have not provided any information, despite repeated requests.

From information Ms Hewson herself put in the public domain in 2016, it is clear that the BSB are well aware of her activities and have been for some time. At least four people have complained since 2014 but nothing apparently has happened. There is – in my view at least – a very real risk that this failure to take any action against Ms Hewson has empowered her to believe that she is untouchable.

I know of no other profession that would tolerate this kind of disgraceful public behaviour from one of its regulated members. How would you feel if your child’s teacher conducted themselves on line in this way? Or your GP? I suspect you would be horrified. Why then are barristers apparently exempt from censure for such appalling and public behaviour?

I made a formal complaint to the BSB on March 23rd about their twin failures; to act with any reasonable expedition to deal with my complaint or to respond to my emailed queries. I was told that I would receive a response by April 25th. None has been received, so I publish this.

Where do I go from here?

I am told that to apply for an injunction under the Protection from Harassment Act will cost me at least £10K. With regard to defamation,  the Monroe v Hopkins libel action was a sobering reminder of the costs those kind of proceedings are likely to incur.

I do not doubt that if I initiated civil action, I would win given the sheer weight and volume of the evidence I have against her – I have now over 500 archived links to her abusive publications on line, along with many emails sent to me and others. But when would I see my costs and/or damages? The little spare cash I did have as a ‘professional loser’ at the publicly funded family bar has now gone on just two solicitor’s letters that managed to stem for too short a time the flood of vitriolic and public attacks on me.

Would I have engaged with Ms Hewson back in May 2016 had I known the full extent of her unboundaried behaviour and that I would receive almost nothing by way of support or action from any other outside agency? Possibly not. But on reflection, I am glad I did. If this whole sorry tale can push individual Chambers and the BSB to greater recognition of the impact of social media and the need to engage with those who misuse it, then at least something positive can come out of this.

Although I count myself as a very resilient person, there have been times throughout this whole process where I have felt very alone and frightened. To be on the receiving end of such targeted harassment from a senior member of my own profession was, initially at least, terrifying. Over the months I have grown a thicker skin but what has really helped was being able to laugh at some of the more ridiculous and childish behaviours publicly demonstrated by Hewson. I remain grateful to those anonymous people on line who helped me gather evidence of her abusive behaviour.

However, while laughter is the best medicine, it does not combat the evil I have identified here, just makes it easier to live with. What has happened to me is happening to many others – some of whom are extremely vulnerable adults. I have witnessed over 7 months now, a disgraceful, public and persistent abuse of power and status; used to intimidate, distress and alarm. And a failure of our regulatory body to do anything about it.

You may not agree with me about how serious you think this is.

And you are entitled to disagree with me.

Unlike Ms Hewson, I will not stalk you, vilify you, abuse you or try to get you sacked if you do.

Time line of harassment by Ms Hewson from August 2016 to 31st March 2017

Mid August to early Oct Ms Hewson subjects me to almost daily harassment via Twitter, including publications of my photograph, details of my Chambers and making various comments that I am a ‘malicious crackpot’, ‘unhinged’ and is sympathetic to those who hold anti-Semitic views.

04/09/16 I cease direct communication with Ms Hewson via social media. All subsequent communications I make are to her solicitors

07/09/16 I complain directly to Ms Hewson’s Chambers. (they reply on 03.10.16 to say they cannot progress my complaint and I need to complain to the BSB)

14/09/16 I make direct complaint to the Bar Standards Board

20/09/16 The BSB confirm they have received my complaint on this date.

23/09/16 Ms Hewson has direct conversation via Twitter with a Mr E, wondering whether I am obsessed with her as a ‘lesbian thing’. Mr E then makes similar and further abusive comments both on Twitter and on a Facebook group. I am very alarmed as I know the identity of Mr E. He has been found by judgments in the family court to have sexually and physically abused his step daughter.

29/09/16 I instruct solicitors to send a letter before action – requesting that Ms Hewson refrain from any further mention of me on social media or I will apply for an injunction.

04/10/16 Unfortunately the letter does not have the desired effect. Ms Hewson late on 4th October, published a significant number of abusive tweets, referring directly to my proposed application and using derogatory terms. Ms Hewson has quoted tweets published by me in August, intending to imply that I am still engaged in conversations with her. This is dishonest.

05/10/16 My solicitors send a second letter before action, setting out very clearly why I am so concerned about her behaviour on 23rd September.

12/10/16 My solicitors send screen shots and archived links to Tweets to Ms Hewson’s solicitors in support of my letter before action, stating that if she does not cease her harassment of me, I will issue proceedings for an injunction. Ms Hewson then refrains from mentioning me directly. I have now spent nearly £2,000 on solicitors’ fees and cannot afford any further expenditure.

31/10/16 I make formal complaint to Wiltshire police about a very abusive email sent directly to my Chambers and two abusive comments left on my blog. I explain that I am concerned that Ms Hewson is directly or indirectly encouraging others to harass me, in light of her own long standing harassment of me.

11/11/16 I meet PC Sarah Greenman of the Wiltshire police at Bradford-on-Avon police station and we agree there is nothing that can be done as they cannot identify the individual who sent the email in October. However, PC Greenman says that if I had reported Ms Hewson’s behaviour of September at the time they would have considered taking a statement from me and arresting her

18/11/16 Around this date I understand the BSB refer my complaint to its Investigations and Hearings Team to look at possible breach by Ms Hewson of Core Duties 3 and 5 of the Code of Conduct.

24/11/16 Ms Hewson’s solicitors contact me to request that I withdraw my complaint to the BSB.

26/11/16 Ms Hewson recommences direct harassment of me on social media, apparently angered that I have suggested to Andy Woodward that he could contact the BSB if he was being harassed on line by a practicing barrister

03/12/16 Mr E attempts direct conversation with Ms Hewson via Twitter.

04/12/16 I email the BSB asking whether recent harassment from Ms Hewson can be added to my first complaint or if I need to make a fresh complaint. I receive no response to this request.

21/12/16 Some bizarre and inflammatory tweets from Ms Hewson saying that her detractors were ‘in the firing line’ and that ‘I hold the gun’. This tweet was reported to Twitter by many users, including myself, as posing a credible threat of violence. Ms Hewson then goes quiet again.
I email the BSB to ask again if I need to make a separate complaint about this or it can be included as evidence for my first complaint. Ms Lall says she will need to speak to her Line Manager and will respond in the New Year.

14/01/17 Ms Hewson’s direct harassment of myself recommences, including making direct reference to my Chambers. I have no idea why; I have not done or said anything to provoke her.

15/01/17 I email Ms Hewson’s solicitors requesting confirmation that I can serve any application for an injunction at their offices. I say I am very concerned that Ms Hewson is in contact with two men who have just been arrested for stalking Esther Baker and an unnamed journalist. These men are Simon Just and Darren Laverty.
I email Ms Lall in the following terms:
1. Do you require me to raise a separate complaint about this and other matters raised with you since November 2016, or can these issues simply be applied to my initial complaint of September 2016 as further evidence of a pattern of on going behaviour?
2. Could you confirm the likely timescales for investigation into my complaint of September 2016?
3. If I do apply for an injunction in civil proceedings against Ms Hewson pursuant to the PHA, or refer this matter onto the police, is the BSB likely to suspend its current investigations and/or delay making any fresh investigations until the outcome of the civil/criminal proceedings are known? I appreciate and understand that the function of the BSB is not to protect my personal safety and your investigations will necessarily take time. It may be that I have to take other action to protect myself and my reputation.
However, I am very anxious not to delay your investigations by any action I take as an individual. My concerns about Ms Hewson’s general fitness to practice are ever increasing and this clearly has implications for very many people other than myself, and to the reputation of the Bar as a whole.

16/01/17 I am emailed directly by Simon Just, who also emails a senior member of my Chambers. It is clear that he has been encouraged by Ms Hewson to do this and has read my email to her solicitors. Later this evening Ms Hewson emails directly a senior member of my Chambers, mistakenly believing he is my Head of Chambers. He forwards her email to me then deletes it and replies to Ms Hewson that he will not communicate any further with her about this.

17/01/17 Ms Hewson emails me directly saying that I am not to correspond with her or her solicitors. That evening I am informed that one of the people ‘liking’ and ‘retweeting’ her abusive tweets about me is Nigel Oldfield, a convicted paedophile. I become very alarmed.

18/01/17 Early this morning I telephone and email PC Sarah Greenman to say I wish to make a formal complaint as the harassment has started again and is escalating. I receive no reply so at lunchtime I ring the Wiltshire control desk who tell me PC Greenman is on annual leave but they will pass a message on.
Ms Lall telephones me that evening and asks that I provide further complaints from ‘persons of standing’ who are concerned about Ms Hewson’s behaviour.

19/01/17 I have a number of replies from people I contact, asking them to support my complaint about Ms Hewson, to say they are too afraid of reprisals. One fears for her job, Ms Hewson having contacted her employer and made a false allegation of misconduct.

20/01/17 Ms Hewson publishes on line part of my email to her solicitors. PC Greenman contacts me and asks me to make a report to the Metropolitan police as this is the area where Ms Hewson resides.

21/01/17 Early that morning I make a report to the Metropolitan police who refer me back to Wiltshire. Ms Hewson continues to make abusive and threatening publications on Twitter throughout the evening and late night, publishing part of my email to her solicitors and calling me a ‘malicious bitch’. PC Greenman replies to my email and we try to arrange a date to meet so she can take a statement.

22/01/17 Ms Hewson continues harassing me via Twitter – her ‘pinned tweet’ invites journalists to contact her regarding me. I email PC Greenman.
I email Ms Lall and request information by Monday 30th January about when the BSB will be in a position to respond to my complaint which they received on 20th September 2016.

23/01/17 In the morning I am contacted via email by Jonathan Ames a journalist for the Times who says Ms Hewson has sent him my email to her solicitors of 15th January 2017 and he asks for comment. I say it would be inappropriate as the BSB are investigating. At about 5pm her Twitter accounts are suspended after complaints from other users. She immediately sets up a third account which quickly degenerates into abusive harassment of various others.
I email PC Greenman

25/01/17 Ms Hewson’s third Twitter account is suspended. I email PC Greenman.

26/01/17 At 1.10 am Ms Hewson emails me directly. I forward this to her solicitors and ask them to remind her not to contact me, and I will treat such communication as further evidence of her harassment of me.

30/01/17 An article appears on page 3 of the Times, quoting my email. I have never given permission for my correspondence to be used in this way. I consider that Ms Hewson has now extended her harassment of me to the national press. I email PC Greenman again, requesting a date to meet to provide a statement. I email the BSB to request urgent information about the state of their investigation.

31/01/17 The BSB email me to say that they have sent a letter to Ms Hewson outlining my complaint against her conduct from May – Jan 17th 2017. She will have 3 weeks to reply.

01/02/17 Ms Hewson’s second Twitter account is reinstated but she ‘protects’ her account so only confirmed followers can see what she writes.

03/02/17 From about 9pm Ms Hewson unlocks her account and publishes a continual stream of derogatory tweets, including one that says, in reference to me ‘Will no one rid me of this McCarthyite barrister? What is wrong with her?’ This is – in my view – direct incitement to her followers. She is tweeting about my daughter. I report her to Twitter for the fourth time (I have since made eight more complaints).

04/02/17 On line harassment continues

05/02/17 On line harassment continues

06/02/17 I attend Bradford on Avon police station and PC Greenman takes a statement.
I make second complaint to the BSB that Ms Hewson is in breach of r69 of our Code of Conduct; she must not victimise someone who has made a complaint about her in good faith.

07/02/17 On line harassment continues

08/02/17 On line harassment continues. I forward screenshots to PC Greenman who replies to suggest I consider meeting with the Restorative Justice Team. I express scepticism but say I am willing to discuss the process with them.
That evening the on line harassment from Ms Hewson is probably the worst it has ever been to date. She compares me to Karen Matthews and says I am a liar and should be struck off. She denigrates my personal appearance. She includes my Chambers directly in her publications. She taunts the BSB directly.

09/02/17 I email PC Greenman and say I would be grateful if my statement could be finalised as soon as possible and forwarded to the Metropolitan police.
My Head of Chambers confirms via email that this matter will be raised at the Chambers Management Board meeting to consider what action Chambers can take against Ms Hewson.
A barrister colleague emails the BSB to express her concern about what she is reading.
Ms Hewson refrains from targeted harassment of me on this date.

10/11/02/17 Late on 10th February and in early hours of 11th February, Ms Hewson publishes large amount of abusive and derogatory material. This is even worse than her publications on 8th February. She is now including a colleague in Chambers, calls us ‘cunts’ and claims we are jealous of her. She tags my Chambers directly in her tweets. She says she is going to publish my complaint to the BSB on line as it is ‘drivel’.
This material remains on line until early evening of 11th Feb and Ms Hewson then deactivates her Twitter account.

12/02/17 At some point Ms Hewson restores her Twitter account, and announces via Social Media that she is retiring from the Bar. She then locks, unlocks and locks again her Twitter account over the next few days.
I attend Trowbridge police station at 1pm to sign my statement and dockets on evidence such as screen shots and blog posts.

13/02/17 PC Johnson of the Metropolitan police contacts me via my mobile to ask for information; he has not yet received any paperwork regarding my complaint.

14/02/17 The Management Board of my Chambers meet to discuss the activities of Ms Hewson.

15/16/02/17 Ms Hewson publishes variety of late night/early morning abusive tweets; including telling me I will ‘rue the day’, I am ‘dodgy’ and ‘evil’. And directly tagging in PC Greenman of the Wiltshire police.
I email Wiltshire police, the Met and the BSB. Ms Hewson has deleted these tweets by about 8am but I have screenshots and archived links.

17/18/.02.17 This evening my HoC confirms that Chambers will write to the BSB to express their dismay that the investigation into Ms Hewson is taking so long, in light of the abusive nature of her conduct and its impact (this letter is sent on 22/02/17).
Late this evening and early morning of 18th February 2017 Ms Hewson emails me directly; first by copying me into email sent to PC Greenman, demanding that I withdraw my complaint to the police; second she emails me directly asking to know if I am registered with the ICO. I forward both emails on to the police, the BSB and her Chambers, as Ms Hewson is using her Chambers address to send emails which I consider to be part of her continued campaign of harassment against me.
I send Ms Hewson’s Chambers a copy of this timeline. I consider it is important that they are aware of the full nature and extent of her activities as the implications for the reputation of their Chambers are serious. I ask if they can suspend or restrict Ms Hewson’s access to their Chambers’ email system.
Later that morning I am told that Ms Hewson has sent ‘cease and desist’ letters to 2 other barristers and a journalist, using her Chambers address in 2 of the 3 emails.
In one email she falsely asserts that I have chosen to publicise our dispute in the national press. I have done no such thing. This is a deliberately dishonest statement by Ms Hewson as the emails between myself and Jonathan Ames on 23rd January 2017 prove.
I obtain permission from one of the barristers and the journalist to forward copies of the emails they received to the police and the BSB. The emails have caused distress to all the recipients.

19/02/17 Linda Turnbull of the Standards Committee of 1 Grays Inn Square emails me to say that they will await the outcome of the police and BSB investigations of Ms Hewson.
That evening there is further relatively mild denigration of me by Ms Hewson on social media.

20/02/17 No on line harassment from Ms Hewson on this day.

21/02/17 From about 11pm further abusive publications; that I am associating with anti Semites, am hysterical and waste police time. My Chambers are directly included in some tweets.

22/02/17 I email the BSB with regard to my second complaint that Ms Hewson is victimising me for making a complaint and ask for clarification as to how to proceed. Do they wish me to make a fresh complaint for each new incident?

23/02/17 I am contacted by DC Adam Downs who leaves a message to say that my case has now been transferred to him at Islington. I email my updated timeline.
More on line abuse from Ms Hewson.

24/02/17 I speak to DC Downs around 9am and he informs me that he contacted Ms Hewson yesterday with a view to issuing her with a harassment warning notice and this probably prompted her abuse of me last night.
I confirm that I muted her account in September and blocked it in January and that I have frequently report her account to Twitter Support, to no avail.

25/02/17 Some mild denigration of me on Twitter in late evening/early morning of 25/26 February.

26/02/17 No on line harassment from Ms Hewson on this day.

27/28/02/17 Some mild denigration of me and direct tagging of Chambers but Ms Hewson does not mention my full name. However, she is clearly monitoring my social media output, as she engages in direct conversation with someone with whom I am having online disagreement and tells him I am a ‘monstrous’ example of feminism and a bully.
Later that day the BSB email to inform me that Ms Hewson has requested an extension of time to reply to my (I assume) first complaint, until 9th March. I reply to ask for a response to my email of 22/02/17 regarding the need to make a fresh complaint. I say that if I do not receive a response from the BSB I will make my third complaint on 6th March, relating to the dates from 06/02/17 – 06/03/17

01/03/17 Email from DC Downs to confirm that harassment warning notice will be served upon Ms Hewson by post, expected to arrive on Friday 3rd March. If she breaches it she will be arrestable.
No on line harassment from Ms Hewson on this day.

02/03/17 No on line harassment from Ms Hewson on this day
I email the Standards Committee of 1 GIS to inform them that Ms Hewson is to be issued with a harassment warning notice.

03/03/17 At 8.50pm I receive email notification from EventBrite that Ms Hewson has purchased a ticket to a conference on 9th June where I am clearly listed as speaking. At 8.51 she tweets that she is going to this conference ‘see you there?’ I am alarmed by this as there is no reason for her to go to this conference other than to attempt to make physical contact with me. She posts various tweets in which I am named.
I email DC Downs and ask that the police now give serious consideration to arresting Ms Hewson as this harassment has occurred after service of a PIN.

04/05/03/17 Late on Saturday night and early Sunday morning Ms Hewson publishes further derogatory tweets, and directs one to my HoC. I forward these to DC Downs.
On Sunday morning I have a telephone conversation with DC Downs who say he has received a 9 page email from Ms Hewson to say that the Met are breaching her human rights. He then emails me to say

I have reviewed these screenshots. Because twitter is a public domain everybody has the right to express their freedom of speech. This is regulated by twitter themselves. Unless you are physically mentioned with the @ sign to your direct twitter account, this does not qualify as harassment of malicious communications.

The harassment warning has been served to Ms HEWSON and remains in place.

Unless there are any direct messages or tweets with the @ sign to your account the police cannot take any further action. However, please continue to record tweets which you believe are aimed at you for any civil proceedings you wish to take.

06/03/17 Having received no response from the BSB to my email of 22nd February and 28th February, I make my third complaint that Ms Hewson continues to victimise me for having made a complaint about her.
The BSB then email after I have posted this complaint to say that I can submit new evidence in support of my first two complaints, rather than make a fresh complaint.
Later that evening/early morning of next day Ms Hewson posts some derogatory tweets about me using my direct Twitter handle. She also contacts the Head of my Chambers Family Team directly

07/03/17 I email DC Downs to request confirmation that the Met will take no further action against Ms Hewson and ask for copies of the PIN and my statement. I am considering applying for a civil injunction as a litigant in person.
Further derogatory tweets later that evening/early morning 8th March including the allegation that I make ‘vexatious, incessant, untrue and malicious’ complaints.

08/03/17 Ms Hewson is challenged by another Twitter user for re-publishing a tweet where this user was called a ‘cunt’. She points out that Ms Hewson is ‘targeting and harassing’ me in a ‘persistent’ way which looks ‘vindictive, malicious and obsessive’.
Ms Hewson refrains from any further harassment of me on this date.

09/03/17-29/03/17 Ms Hewson’s account remains protected and she steadily reduces the number of people ‘following’ her on Twitter from approx. 3K to approx. 100
I am not aware if she publishes anything derogatory about me or my Chambers.  The 9th of March was supposedly the date by which she was to respond to the BSB regarding my complaint but I receive no information about this and to this date remain entirely unaware of her response.

24/03/17 I am emailed by a student, Mehul Desai,  to say he is very distressed that Ms Hewson has been sending him threatening emails very late at night and has contacted his University. Ms Hewson is demanding that Mr Desai remove the publications he has made via Twitter of her correspondence.
I understand that Mr Desai also makes complaints to the police and the BSB about Ms Hewson’s behaviour.

30/03/17 Late at night on 30th or early in the morning of the 31st, Ms Hewson unlocks her accounts and makes derogatory remarks directed explicitly at me, another barrister and my Chambers. She also publishes my photograph again.

31/03/17 I consider making further complaint to the police but when I check Ms Hewson’s account around noon I note that it is protected again. As no one but her now (significantly depleted) numbers of followers can see what she publishes, I decide that I will not report this but will keep an eye on her on line activities and see what develops over the next few days, with a view to making a fresh police complaint if the public harassment continues.

It’s still going on – but enough is enough.  I can only hope now that with her much reduced following and the considerable publicity about her activities, my reputation is protected from her continued denigration. 

The Troubling Role of Trauma in Social Work – a parent’s view.

I am grateful for this guest post from contributor [email protected]. She asks how do social workers perceive ‘trauma’ and what impact does that perception have on their decision making? Are social workers being tempted to make ‘diagnosis’ of conditions that are outside their expertise?

When we see pictures of puppies or kittens we may have a strong impulse to go ‘Aaaah’. When we hear of ‘traumatised/abused/neglected children’ we should feel a visceral sense of revulsion. Social workers working with children will see it as their professional role to make things better for the ‘traumatised/neglected child’ but what does a traumatised/neglected child look like? That can be very hard to assess. At one end of the spectrum the child may be very quiet and at the other end a child may be beyond control and have any number of difficulties from extreme anxiety to violence. Are the problems of such children a result of abuse/trauma or could there be other reasons for their difficulties?

What if a social worker takes it upon themselves to assess the problem and becomes so fixed in his/her views that he/she fails to robustly assess all possible reasons for a child’s difficulties and take any steps he or she can to pinpoint exactly where the problems are? I believe many social workers have reached the point where they are now in danger of making these calls based on their own ‘hyper-vigilance’ around trauma/neglect.

What is trauma?

I must confess I never paid too much attention to ‘trauma’ before social workers entered my life and I began to hear this word again and again. I suppose my idea of trauma would have been a natural childbirth – the most natural thing in the world even if it is challenging when you are going through it.

Social workers seemed to use trauma as shorthand to explain why someone might be having a difficulty. This version of trauma seemed to me to be closer to a therapist’s version of trauma, an emotional wound or rupture that needed to be addressed before the person could move on with their life.

I’ve since had the benefit of hours of support from therapists around the ‘fall-out’ around our family situation so I think I really do now understand trauma – the life-changing, perspective-altering, ‘no-going back, get used to it’ type of trauma but I still have serious reservations about how social worker perceive trauma and the role it plays in people’s lives. The idea of a social worker fixing emotional wounds may help social workers get through a very challenging day but it seems to me to bring with it a number of really quite serious problems.

The danger of scapegoating

I believe that social workers often deal with parents in distress/despair including the ‘just about managing’ who have tipped over into crisis. They may, for example, be caring for disabled children, in poor health, living with violence, carrying debt they have no chance of paying off or in poor/insecure housing and employment. They may also not speak English very well or be dyslexic or have learning disabilities. They may have a whole range of vulnerabilities that they need help with including help parenting a child with unexplained emotional and behavioural difficulties.

I don’t want to make this an article about the destructive effects on families of policies that are ‘rebalancing’ our society so that we all become ‘economically productive units’ but it is a fact that these policies are really hurting many of the ‘just about managing’. Social workers may feel powerless when faced with the effects of these policies and may not have the resources to meaningfully address the difficulties of those affected but it is an undeniable fact these policies are having a hugely detrimental effect on the mental health of many of our children. (See http://www.childrenssociety.org.uk/news-and-blogs/press-releases/nine-homes-by-the-age-of-nine-–-housing-instability-marks-lives-of#163961_20170330102705)

When supporting families in dire circumstances, it is tempting for the social worker to take on the role of ‘expert’, stick a label of ‘incompetent’ on the parent without acknowledging the role of factors beyond the control of social worker or parent on the child’s difficulties. Parenting classes are a rite of passage for parents in this situation. Having being on an excellent but wildly inappropriate Troubled Families Programme this is emotive territory for me. There may be no money for anything else but in my view it is unethical to send parents on parenting courses without a very clear idea of the child’s/families difficulties and how the course will help in all spheres including around personalised health support.

The ‘nature vs nurture’ debate.

Where to start…
Trying to find answers for a child’s difficulties is such a highly contested area and moves well beyond the social work world. This contest is fought out for example in the arenas of genome sequencing and brain scanning and there are also a small number of clinical trials challenging myths that have informed whole policies including policies on social work training. (See http://link.springer.com/article/10.1007%2Fs10803-015-2680-6 ) There are ‘dirty tricks’ including presenting brain scans of children brought up in environments where they have been extremely mistreated,used to evidence harm caused by parental incompetence.

This battle is also fought by people based on their own difficult experiences of childhood or of parenting a child with unexplained and profound difficulties for whom they have been unable to get help. Few players do not have strongly held beliefs or professional reputations at stake.
Clinicians are grappling with the implications of this in terms of clinical practice. Policy makers have identified a tsunami of demand and know there are very limited clinical resources with the expertise to make these calls for individual children.

As an example of the difficulties clinicians face there are two diagnoses for virtually the same set of symptoms. Attachment disorder for the children of the disorganized, unresponsive parent living in poverty that is unable to parent their child successfully (cause – parental neglect) and late diagnosis Autism/Asperger Syndrome possibly with a demand avoidance profile for the children of ‘competent’ parents. (cause – as with all the Autisms largely genetic with a possible in-vitro environmental element).

Fraudsters abound with ‘bleach cures’ and dubious ‘therapies’ and families are desperate for answers. There are virtually no diagnostic paths for Fetal Alcohol Spectrum Disorder. No matter what the circumstances of their parents, it is, in my view, likely that the low priority given to mental health services for children has all-but failed a generation of self-harming, anxiety immobilised adolescents and their families, many with unidentified disabilities and difficulties such as sensory and sleep disorders,. (https://epi.org.uk/report/time_to_deliver/) It is also likely that low self-esteem is a major contributing factor for many children/young people with ‘behavioural’ difficulties. Somewhere in the mix comes trauma – the ‘emotional wound’ type and the ‘neglect’ type and the type you ‘recover from’ and the type you ‘learn to live with but never recover from’. The good news where trauma is concerned is that recovery is often possible with the right support unlike disability which is life-long.

Imagine what is like for a parent really struggling to get help for their child to be told the child’s difficulties are ‘on your head’, caused by ‘trauma’ and by a social worker to boot and yet many social workers believe this is their call.

What is the Social Workers role?

It may or may not be true that there is widespread mis-diagnosis of ADHD, ASD, Attachment and anxiety and similar disorders but it takes another clinician to make this call for an individual child and to generalise you need evidence of widespread mis-diagnosis via randomised clinical studies or equivalent.

I believe when trying to help a young person with profound emotional, behavioural difficulties social workers should be alert, question, look for guidance from clinical colleagues, raise concerns where you have them, provide personalised support to the best of your ability, fight for their clients rights for good support including good clinical support but you should always stick to your area of competency. The ability to make clinical diagnoses as a result of trauma just does not fall within it.

As if People Were Humans – Humanistic psychology in the Family Courts

–

I am grateful for this guest post from Mansour Jumaa who discusses how the family courts could be more humane in their operation, by deriving benefit from the teachings, principles and practice of Humanistic Psychology. 

“None of us are as smart as all of us” 

(Japanese proverb)

1 Introduction

1.1 This brief article suggests that the FLCS – Family Law Courts System – have nothing to lose but so much to benefit from when the teachings, principles and practice of Humanistic Psychology are embeded within the ethos and legal activities of the FLCS. My assumption is that readers of this Blog are familiar with the FLCS – Family Law Courts System. If you are a new visitor this Link provides a brief basic background information –
http://bit.ly/2osxATQ

1. 2 I start with the background to this article then move on to give reasons why coaching interventions based on humanistic psychology principles are relevant for the FLCS?. Executive co-coaching is presented as the vehicle for the coaching interventions and Doctor MOJ’s Strategic Recipe – Leadership for S.E.L. – Social & Emotional Learning Development (S & E Q Development) is proposed as the implementation methodology. The article ends with a conclusion and a suggestion for the way forward.

2 Background

2.1 “As an RDP – Recently Divorced Person, a divorcee of less than 2 months, I am still psychologically and financially sore. Nevertheless, as I reflect, on an on-going basis, on my current situation, I consider myself ‘privileged’ to be unfortunate to be a member of a failed marriage!! I can confidently say I never thought, in a milion years, that divorce will happen to someone like me. I am, however, accepting it because it has happened to me. The next and current phase for me is to get positive outcomes from this experience for all those involved with me within the Family Law Courts System (FLCS), particularly for my 2 sons age 15 & 12 yrs old. This experience has exposed me to many aspects of family life, in relation to FLCS that I never knew existed – both in theory and practice. The concepts of L.I.P. – Litigation In Person; McKenzie Friends; Mediation; the role of several voluntary orgaisations – FNF – Families Need Fathers, are just a few examples of individuals and organisations within the Family Law Courts System. So why coaching interventions based on humanistic psychology principles for the FLCS? Let’s go to Section 3, next.

3 Why coaching interventions based on humanistic psychology principles for the FLCS?

3.1 My recent attendance and participation at the FNF – Families Need Fathers Conference and AGM in Bristol on the 18 March 2017 was a thoroughly enjoyable and a very professional experience. All the presenters – Dr Sue Whitcombe, Lori Busch, Paul Apreda, Sarah Phillimore including the Keynote Speaker, Sir James Munby were excellent. All, without exception, either explicitly or indirectly refered to or and used aspects of humanistic psychology principles in their presentation. Why is this so? This is, partly, because, it appears that there are concerted efforts within many quarters of the FLCS exploring how the legal process could be more humane while carrying out its legal duty of care. These Judgements and publications –

Unreasonable behaviour, unreasonable judges or unreasonable law? http://www.transparencyproject.org.uk/unreasonable-behaviour-unreasonable-judges-or-unreasonable-law/ ;
http://www.bailii.org/uk/cases/UKHL/2005/23.html
http://www.bailii.org/ew/cases/EWHC/QB/2014/1619.html
http://thejusticegap.com/2016/01/poppi-worthington-and-the-risk-of-ghost-miscarriages-of-justice/
‘Achieving Best Evidence in Children Act cases’.

Achieving best evidence and use in Children Act cases


What do we mean by proving something ‘on the balance of probabilities’ ?

What do we mean by proving something ‘on the balance of probabilities’ ?

are just a few examples where reactions showed movement within the FLCS travelling in the direction of an attempt to make the Family Law Courts System as if People were Humans!! All the presentations at the FNF Conference, without exception, are, It appears, that their primary focus align with the humanistic perception on the innate goodness of human beings, the drive and potential of humans to achieve personal growth, human responsibility, and the actual lived experience of the human person. The overiding argument here is that, above all, each human is a unique being, who has the ability to choose and change, despite constraints we may face, despite the consraints and the pain that divorce brings.

3.2 The Family Law Courts System (FLCS) can work humanistically with these Core Beliefs and Practices. Who within the FLCS would argue against a legal process that aims to practise and demonstrate the organic processes parallel to those of a healthy human being? Who would raise objections to the FLCS organised in such a way to include being able to hold complexity; knowing when to conserve and when to embrace change in order to thrive; having an awareness of the FLCS’s needs as a caring organisation; being self-examining as well as open to different perspectives and experiences; holding the FLSC in ethical and spiritual good faith; being willing to actively adopt new practices where appropriate so that growth and development is enhanced, whilst honouring and maintaining the legal duty of care nessential (i.e. necessary and essential)? Who within the FLCS would object to aiming to apply the same criteria of respect, empowerment, authenticity, etc. that we have for our clients to ourselves as members of an organisation and to others we interact with? If there are no objections from the FLCS to these statements on Humanistic Practice as an Organisation based on UKAHPP’s Statement of Core Beliefs and the Codes of Ethical Principles and of Practice, then the FLCS in on the very difficult but doable journey to treat People within the system as if we were Humans!! But how is Humanistic psychology principles explored via executive co-coaching? The next Section provides some answers

4 Humanistic psychology principles explored through Executive Co-coaching

“There are more tears shed for answered questions than unanswered questions
(Mother Teresa)

4.1 The starting point is to understand the person and to ‘walk a mile in their shoes’ or otherwise get under their skin. In doing so and subsequently, using humanistic psychology principles you make deliberate effort in developing a good working relationship with your client and others you interact. Whilst they may not be your friends, you are friendly towards them and encourage them to like one another.

In your everyday activities and within your activities as a part of the FLCS, could you attest to the fact that you have developed or are developing some or all of these attributes?

  • you are a good listener and you can ‘walk a mile in others’ shoes’ – that means you can empathise with others, recognising that each stakeholder brings something to the table (DESIRE)
  • you have failth in others and you have used or you are familiar with and aspire to use some of the very effective interpersonal, group and emotional skills interventions developed by Prof John Heron over 40 years ago at the University of Surrey, England (DISCIPLINE)
  • you are always reflecting on your activities by using simple questions such as, ‘What did I do’? ‘So what’? and ‘And now what’? (DOING now) and
  • you on an on-going capacity encourage, just as you do, others to truly own their own problems and own their solutions, through on-going personal and peofessional development (DOING always)

These 4Ds approach are examples of the application of the humanistic psychology principls, teaching and practise that I have integrated into a process I termed Executive Co-Coaching.

4.2 What is Executive Co-coaching? Executive Co-coaching derives from the traditional executive coaching – a management development tool that has the potential to combine personal career development with organizational strategy and goals. However, with Executive Co-coaching, I have deliberately developed a process that focus not only on the individual but also on the Group’s E & S Q Development (Emotional and Social Quotient Development). In other words, what benefits the individual members of the Family Law Courts Systems [FLCS] could also benefit the client, the petitioner, the resondent and the legal industry.

4.3 The term executive co-coaching, however, is extended to have significant creative, original and innovative additional components. Working with my colleague, Dr Josephine Alleyne, I have drawn on our education, our experience and expertise as managers, experience as an accredited facilitator, educators and strategic negotiator in higher education to develop the role of the professional as an executive co-coach – that professional could be a legal professional or practitioner. The ‘co’ in co-coaching embraces, for example, the work of Prof John Heron on interpersonal, group and emotional skills. This is combined with the works of Henry and Walker on creative and innovative management approaches, the McKinsey Company’s
ground-breaking work on ’Decoding Leadership’ and other works. They are synthesised to come together as Doctor MOJ’s Strategic Recipe (see Box 1, Section 5, below). The recipe also uses.the processes of the Resource-Based View (RBV) to strategic management. The RBV is quite significant as the focus is on what you are able to achieve irrespective of the THIMMEL Resources at your disposal (THIMMEL – Time; Human; Information; Material; Money; Equipment/estates/energy; Land Resources – Jumaa & Garside 2016).

4.4 Executive co-coaching uses evidence-based management and leadership interventions in addition to perceiving the client (s) as whole person (s), a human being, with the sole aim of promoting and enhancing effective processes for learning (D1), leading (D2), living (D3) and laison (D4). It brings a human face to managing and leading within organisations – a quality that is not only desirable but nessential for law practice, in England and Wales in the 21st Century [nessential = necessary and essential].

Barrister Sarah Phillimore and her colleagues at The Transparency Project bring to the dialogue an intentionality in reflecting on what values are guiding decision-making in the Family Law Courts and how these values ought to guide policies, as well as the practice that is fair, accessible, affordable and fair justice”. The activities of The Transparency Project are firmly grounded within the humanistic psychology teachings, principles and practise. How could a purposeful application of the humanistic psycholgy principles be implementd within the FLCS? Section 5, next, provides some insights.

5 Implementation Methodoloy

“The reasonable man adapts himself to the world,
the unreasonable one persists in trying to adapt the world to
himself. Therefore all progress depends
on the unreasonable man”
George Bernard Shaw

5.1 Box 1, below, is Doctor MOJ’s Strategic Recipe – Leadership for S.E.L. – Social & Emotional Learning Development (S & E Q Development). This recipe is proposed as an evidence based approach to introduce the humanistic psycholgy principles within the FLCS. Using Box 1, the task is not to adapt the FLCS’s activities to ‘fit’ the contents of the Box, the challenge is to make, define and justify your assumptions in relation to your legal activities: goals; roles; processes and relationships against the chosen and identified contents for your particular needs. Depending on the project in hand different aspects of the Box will feature in your analysis, evaluation and application. The over-arching question you must ask when using any of the contents in Box 1 is – to what extent is this contributing to or serving as a hinderance to making your desired legal goals specific; roles explicit, processes clear and your legal relationships open? – Honest answers will add tremendous value to your legal processes outcomes (capabilities)

5.2 Why should you trust Doctor MOJ’s Strategic Recipe? The recipe is put together based on on-going Action Science reseach and development activities since1995 at the London Middlesex University, England. The approach is about doing research with people and not on people. A theme that runs through the recipe is emotional and social competence development. The heart and brain of the recipe is the S.T.E.P. DNA 4Ds in the first column. This is supported by McKinsey Company’s ground-breaking research Decoding Leadership (2015). The pther 4 columns to the right of the S.T.E.P. DNA 4Ds are true, tried and tested approaches.

5.3 What is the origin of the S.T.E.P. DNA 4Ds? The CLINLAP/LEADLAP Model, was developed at the London Middlesex University, in 1997. It is featured in Section 2 of the Best Selling Book – Effective Healthcare Leadership. Detailed interventions used in various assignments and roles, modified as necessary, appear on pages 90 – 91 of Effective Healthcare Leadership (Jasper & Jumaa 2005). This book was co-authored by Dr Jumaa with Late Prof Melanie Jasper. Doctor MOJ has further developed the CLINLAP/LEADLAP Mode as the S.T.E.P.Way and presented it successfully to critical research communities in Canada, Kenya, (2010) Liberia (2013), Mexico (2011), UK and the USA (2009, 2008). The final outcome is the S.T.E.P. DNA 4Ds. The over-arching approach to the implementation of the S.T.E.P. DNA 4Ds is via the 4Ds – Desire, Discipline, Doing now and Doing always.

5.4 Box 1, the Strategic Recipe, provides an evidence based tool kit for for personal and professional development for those who operate within the FLCS. Used wisely, systematically and correctly, based on the extended humanistic psychology principles, the S.T.E.P. DNA 4Ds. will guide the Family Law Courts System as if People were Humans. The S.T.E.P. DNA 4Ds is firmly guided by the notion that In the current workplace of the 21st century, emotional intelligence is about our relationships: (a) Our relationship with ourself (self-awareness and self-management) and (b) Our relationships with our colleagues and clients (social awareness and relationships management)

Box 1: Doctor MOJ’s Strategic Recipe – Leadership for S.E.L. – Social & Emotional Learning Development (S & E Q Development) (after Jumaa 2001)
The S.T.E.P. DNA 4Ds
(Jumaa, 2015)
McKinsey’s Decoding Leasership (2015) Tuckman
Stages of Group Development Emotional
Intelligence
Required
(after Heron, 1990; Goleman in Italics) Mintzberg’s Managerial
Roles Practical
Competencies and Capabilities
(Jumaa, 2001)
Stakeholder influence

D1 – DESIRE Solving problems effectively* FORMING
Initial awareness. Why are we here? Awareness;
Ownership
Self-awareness Leader
Liaison
Entrepreneur Who’s Who?
Team’s Mission
A.S.T.R.E.A.M objectives
Technologoes and innovation focus

D2 – DISCIPLINE
Operating with a strong results orientation* STORMING
Self –organisation Identification;
Discrimination
Self management Liaison
Resource Allocator
Spokesperson
Disseminator Resources and Capabilities issues; Operating standards; Effective communication
Experiential learning methodology

D3 -DOING now
Seeking different perspectives* NORMING Sorting-out process – bidding for control and power Acceptance;
Choice
Social awareness Liaison
Negotiator
Monitor Acceptability; Suitability; and Feasibility
Personal development – ongoing

D4 – DOING always
Supporting others* PERFORMING
Maturity and mutual acceptance Transmutation;
Expression;
Control; Catharsis
Relationship management Liaison
Disturbance Handler
Figurehead
Monitor Resistance management
‘Blame-Free’ context; Trust; Information Sharing; Feedback, Action

*Decoding leadership: What really matters (2015)

5.5 Successful implementation of the S.T.E.P. DNA 4Ds demand 4 nessential types of legal leadership: [nessential = necessary and essential]
1 Desire for Human Justice based on Stakeholder Leadership. Key question to ask is – What do legal professionals and practitioners need to do for effective management and leadership of the Family Law Courtts System and why? Stakeholder Leadership is about Influence of Power & Interest in yours and others’ actions and projects. Self-awarenees is necessary here as you consider the values and aspirations of major stakeholders and managers for this particular legal project
2 Discipline for Human Justice based on Technologies and innovation Leadership. Key question to ask is – Where is the FLCS now and why? Technologies & innovation Leadership focus on Social Media and Digital Communication. The operational question is what can the FLCS do efficientky and effectivey with social media and and digital communication? The challenge here is to fully and comprehensively identify & assess the FLCS’s strengths and weaknesses (i.e. – its Resources and Capabilities). You need an authentic, honest and an acute sense of Self Managenent to be effective here.
3 Doing now for Human Justice based on Experiential learning Leadership. Key question to ask is – How could the FLCS get to their desired goal/s and why? Which direction could they take and why? Experiential Learning Leadership is about Reflection – what? so what? and now what? -, Context-based Results and Impact. Explore the question – What might the FLCS do to improve its operations and services? A very well developed Social Awareness capabilty is neccesary here to assist you to Identify & Assess opportunities and threats (local, national and global) that face the FLCS now and in the future.
4 Doing always for Human Justice based on Personal development Leadership. Key question to ask is – Who, what and when do lawyers, practitioners and others in the FLCS need to sustain their achievements and why? Personal Development Leadership is about managing Resistances as a Positive Platform for Sustainability. Focus question shoud be What shoud the FLCS do to ensure on-going personal and professional development amongst key stakeholders? You need a well developed capability and competence in Relatiobships Management as you direct your energy to clarify an acknowledge major stakeholders’ social and ethical responsibilities and how these are compatible with the objectives of the FLCS. These 4 main leadership habits will serve you efficiently and effectively to achieve your goals and aspiration for a fair, just, transparent and accessible FCLS – Family Law Courts System.

5.6 Does the FCLS – Family Law Courts System need the type of interventions put forward in this article? The answer is a big YES!!. “We know that poor management costs UK plc £19bn in lower productivity, leaving us lagging behind our G7 EU neighbours. We need to equip our leaders and managers with the skills to embrace change, build trust and create working cultures with positive role models and inclusive values. Doing so will give us a better-managed Britain able to thrive in a post-Brexit economy.” (Anne Francke – Chief Executive, CMI – Chartered Management Institute, 2016). “Open justice is a hallmark of the rule of law. It is an essential requisite of the criminal justice system that it should be administered in public and subject to public scrutiny.The media play a vital role in representing the public and
erecting the public interest. However, as is well known, there are some exceptions to these principles. Difficulties and uncertainty can sometimes arise in ensuring they are correctly applied and observed” – (Source: Reporting Restriction Guidance)

6 Conclusion

6.1 The use, application, modification and the extension of the teachings, principles and practise of humanistic psychology is noticeable in all works of life – business, medicine, sports, teaching and parenting, to name but a few. This brief article has shown how the FLCS – Family Law Courts System could benefit from the teachings, principles and practice of Humanistic Psychology.
The Family Law Courts System as if People were Humans is a goal that is achievable using, for example Executive co-coaching. One method of implementation is based on the coaching interventions within Doctor MOJ’s Strategic Recipe – Leadership for S.E.L. – Social & Emotional Learning Development (S & E Q Development). Hundreds of enthusiasts have successfully used this methodology. Stress Concern International offers a Degree level Global Executive Certificate in Coaching and Mentoring with Doctor MOJ’s Strategic Recipe available for full consumption. If you are interested and would like to take part in this ‘feast’, please contact Barrister Sarah Phillimore at the Transparency Project. The Family Law Courts System as if People were Humans is an admirable goal that is achievable using, for example, Executive co-coaching based on humanistic psychology principles.

Resources

Historic Review of Humanistic Psychology–Introductory discussion of history and nature of the humanistic approach, by the Association for Humanistic Psychology

Humanistic View and Methods–Overview of humanistic methodology, from the Association. for Humanistic Psychology.

A Guide to Humanistic Psychology–Extensive introduction, broken into chapters by topic, by therapist John Rowan; chapters include bibliographies for further reading.

Daniel Goleman is author of:
1. “The Brain and Emotional Intelligence: New Insights,”
2. “Leadership: The Power of Emotional Intelligence,” and
3. “Emotional Intelligence.”

Human Rights Act claims – where are we now?

23rd March 2017
BRISTOL CJC CPD SEMINARS
Section 20 and HRA claims in light of Hackney, Kirklees, Northamptonshire AND SW & TW

Sarah Phillimore St Johns Chambers www.childprotectionresource.online
If you found this presentation helpful, please consider making a donation to http://www.designability.org.uk

SUMMARY

The situation has been clarified with regard to the procedural requirements of any HRA application and we are getting more illumination about the appropriate level of damages. But fundamentally we have a situation where the law provides outcomes which are arguably unjust. This will mean case law may continue to contort as judges continue to try find a way around.

Breach of duty /Damages re section 20 misuse
The Hackney case provoked significant comment from both lawyers and social workers on line I don’t agree that it marks ‘the end of damages for section 20 claims’ but it is an important case:
• use of word ‘object’
• continued relevance of good practice directions
• comment on quantum of damages for HRA breach

The beginning of the end for viable HRA claims for the publicly funded (or even anyone)?
• Hackney is critical of level of damages
• Kirklees sounds the alarm re issue of costs/statutory charge
• SW & TW set out strict procedural requirements to make HRA application.

IMPORTANT EDIT RE THE STATUTORY CHARGE AND DAMAGES

Northamptonshire County Council & Anor v The Lord Chancellor (via the Legal Aid Agency) [2018], considers important new Guidance from the Legal Aid Agency. It confirms that it will no longer apply the statutory charge from care proceedings to Human Rights Act 1998 damages.

See this article by Will Tyler QC and Ben Mansfield in Family Law Week for further discussion.

Provided this guidance is followed then the LAA will not seek to recoup damages.  Parties must:

  • attempt resolution of the claim without issuing HRA proceedings. This may include seeking agreement from the Local Authority to pay the claimant’s reasonable costs of a Part 8 CPR infant approval hearing in the event settlement is reached, to be heard by the care proceedings judge, see H (A Minor).
  • If its necessary to go to court practitioners must:
    • seek a separate legal aid certificate for the HRA damages claim; and
    • issue separate HRA claim forms pursuant to s.7(1)(a), HRA, in accordance with Part 8 of the Civil Procedure Rules, to be listed and determined alongside the care proceedings.
    • seek early confirmation from the LAA that the care proceedings statutory charge will not apply to the prospective HRA award.
    • confirm that they will not and have not claimed HRA costs under the legal aid certificate covering the care proceedings.

London Borough of Hackney v Williams & Anor [2017] EWCA Civ 26 (26 January 2017).

1) 8 children went into foster care for a few months after police intervention. The Williams’ initially signed a section 20 agreement . It is possible that their full legal rights, including this right of immediate removal, were not fully explained at the time. However, the parents quickly obtained legal advice and said they would consent to section 20 accommodation for a short time. The LA agreed that the children should go home but noted the bail conditions were still in place that prevented the parents from offering their children accommodation. The Williams knew they had the right to apply at any time to vary these bail conditions, but did not do so. Once the bail conditions were varied, the children returned home a few days later.

2) There were no criticisms of the initial police actions to remove the children for 72 hours. However, the subsequent action of the LA to accommodate the children saw the following 9 years spent in litigation as the Williams’ pursued various legal claims that their children had been wrongly removed.

Why did the Court of Appeal overturn the first instance decision?
3) In 2015 the first instance court held that the LA were liable to pay damages of £10,000 to each parent for breach of statutory duty and consequent interference with the parents’ Article 8 rights. The LA appealed and won.

4) The parents had argued that their consent to section 20 accommodation had been unfairly obtained and was not thus ‘true consent’. The Court of Appeal examined this claim from para 43 of their judgment, by looking at the guidance provided in both Coventry City Council v C [2013] EWHC 2190 (Fam) per Hedley J. and by Munby J in the earlier case of R (G) v Nottingham City Council and Nottingham University Hospitals NHS Trust [2008] EWHC 400 (Admin)

5) However, as the Court of Appeal note at para 48 – good practice guidance does not have the force of law. Further, the circumstances of the Williams were markedly different to those of the mothers in the cited cases; in particular the fact that the bail conditions imposed by the police, over which the local authority had no control, prevented the children from living with them.

6) The Court of Appeal then considered the case law that had arisen since the decision in the Coventry case: Re B (Looked after child) [2013] EWCA Civ 964 (sub nom Redcar and Cleveland Borough Council v Others); Re W (Children) [2014] EWCA Civ 1065; and Re N (Adoption: Jurisdiction) [2015] EWCA 1112.

7) These cases all touched upon the issue of active objection or passive consent to section 20 accommodation. The Court of Appeal noted the President’s firm words in Re N ‘

The misuse and abuse of section 20 in this context is not just a matter of bad practice. It is wrong; it is a denial of the fundamental rights of both the parent and the child; it will no longer be tolerated; and it must stop. Judges will and must be alert to the problem and pro-active in putting an end to it. From now on, local authorities which use section 20 as a prelude to care proceedings for lengthy periods or which fail to follow the good practice I have identified, can expect to be subjected to probing questioning by the court. If the answers are not satisfactory, the local authority can expect stringent criticism and possible exposure to successful claims for damages.

8) The Court of Appeal commented that as the ‘good practice guidance’ was set out AFTER the Williams’s children went into foster care, they would need to examine the actual law. The key consideration was section 20(7) which sets out that a LA may NOT provide accommodation for any child if any person who has PR is willing and able to accommodate him and OBJECTS.

9) The Court of Appeal commented at para 68:

The word ‘consent’ does not appear within s. 20. There is no express statutory requirement upon a local authority to obtain a positive expression of consent from a parent before accommodating a child under the various provisions in s. 20(1), (3), (4) and (5), let alone any requirement for such consent to be in writing and subject to any of the various refinements that have been described in the case-law to which I have referred. Nothing that is said in this judgment is intended in any manner to detract from or alter the terms of the good practice guidance that has been given, principally by Sir James Munby P and Hedley J, in these cases; the obvious wisdom and good sense of their words are plain to see. The present case is, however, a claim for damages pursuant to s. 8 of the Human Rights Act 1998, in relation to breach of statutory duty under s. 20 of the 1989 Act and breach of rights under Article 8 of the ECHR. Insofar as breach of statutory duty under s. 20 is concerned it is necessary, in my view, for a claimant to go further than establishing that the actions of the local authority fell short of what, subsequently identified, ‘good practice’ might require; the authority must be seen to have acted in breach of the terms of the statute.

10) The Williams could not have offered accommodation. The statutory test was not whether they offered consent to section 20 accommodation, but whether they actively objected to it. They would only have been able to do that if they had applied to vary the bail conditions, over which the LA had no control. Therefore the Court of Appeal did not agree that there was a breach of statutory duty here and thus no damages should be paid.

11) The Court of Appeal made brief comment about the level of damages awarded at para 87 of their judgment. Having decided that no damages should be paid, they did not need to determine quantum but expressed the very clear view that £10,000 was too high in any event.

ANALYSIS

12) This case involved parents who could not offer a home to their children so long as the police bail conditions remained in place. The local authority did not impose these conditions and were not responsible for varying them – although there was some argument as to what information the local authority passed to the police. The parents may not have ‘consented’ to what happened to their children but even if they had made active objection, they could not have taken their children home unless and until the bail conditions were varied.

13) In such a situation I agree with the Court of Appeal that it is plainly wrong to hold the local authority to blame for a breach of its statutory duty. However, these are quite distinct and particular facts which acted to deprive the parents of the reality of any ability to object.

14) Sadly I am sure there are bound to be further cases where misuse of section 20 involves vulnerable parents, who did not understand or did not have explained to them what section 20 means. Those kind of cases are often coupled with a ‘drift’ for the child in foster care of many months before care proceedings are issued. In such circumstances there is likely to be a reasonable argument for a disproportionate and hence unlawful breach of Article 8. The existence of ‘good practice’ guidance about such issues of course does not have the force of law but can provide a useful benchmark against which to measure if the local authority have acted proportionally.

15) However, considering the impact of the statutory charge, the brief dismissal of £10,000 as an appropriate level of damages sounds an interesting warning for future cases which may well go to render HRA claims pretty hopeless in practice. European jurisprudence is clear that damages for human rights breaches are awarded to provide ‘just satisfaction’, not punishment for the wrongdoer. Therefore levels of damages are likely to be low.

Kirklees Council CZ (Human Rights Claim: Costs) [2017] EWFC 11 (16 February 2017)

16) A clear example of an unlawful breach of Articles 8 and 6 of the ECHR – the parents’ child was removed from their care as a new born baby and lived with grandparents for a few weeks. This was done without telling the parents what the plan was and repeatedly misleading the court about whether or not the parents did know and did agree.

17) Cobb J realised that the amount of damages – £3,750 to each parent and child – will inevitably be swallowed up by the statutory charge.

18) The costs in the case before Cobb are set out at para 46 of the judgment. They are horrifying. The ‘grand total’ is around £120K. This is all public money. The parents argued hard for the LA to pay their costs, realising the impact of the statutory charge. However, Cobb J refused; the LA it seems had made sensible and timely efforts to settle this case, realising that their conduct could not be defended.

19) His reasons are set out very clearly at para 58:
• The court’s wide discretion cannot be condensed to one option only (i.e. to make a substantive award of costs) simply in order to achieve a ‘just’ outcome’
• If it had been the intention of Parliament that damages awarded under the HRA 1998 would be exempt from the statutory charge, it would have provided for this in the revised Statutory Charge Regulations (2013); it did not
• the Claimants could not be insulated against the eventuality that the shortfall in any assessment would in itself lead to the obliteration of a modest award of damages;
• The award of non-pecuniary damages under section 8(3) is intended to reflect the Court’s disapproval of infringement of the claimants’ rights, in providing “just satisfaction” to the claimant; it is not intended to be, of itself, a costs award.
• Parliament has devised a legitimate mechanism for the recovery of the costs incurred from those who benefit from state-funded support to pursue their litigation, and however unfairly it may operate in an individual case, it must be respected;
• The court cannot disregard the parties’ litigation conduct in evaluating costs; the Claimants did not conscientiously attempt to settle their claims but the LA did The impact of the Northamptonshire case.

H (A Minor) v Northamptonshire County Council & Anor [2017] EWHC 282 (Fam) (17 February 2017).

20) This case involved an 8 year old boy ‘H’ who was placed in long term foster care with contact to his father. The LA had failed to issue care proceedings until 2016, despite clear and obvious concerns about the care H was receiving from about 2012, and had wrongly restricted H’s contact with his father. H’s solicitors issued a HRA claim and the LAA granted a separate public funding certificate, Keehan J having stated that this application should be made separately but determined alongside the care proceedings.

21) H’s solicitors sought clarification from the LAA as to the impact of the statutory charge upon such a ‘free standing’ HRA application. The LAA replied to say that ‘subject to the extent of the connection between the Human Rights action and the initial Care proceedings any Damages recovered as a consequence of the Human Rights proceedings will be subject to the Statutory Charge and it is possible that the liability will extend to the costs arising from the Care proceeding. The consideration of the connection is made once the settlement is reached, and would depend on the facts of the case’.

22) The LA then made an open offer to settle H’s HRA claim for £18,000. The court decided that it was not possible to agree the amount of damages unless first knowing what the LAA were going to do about the statutory charge; if the costs of the care proceedings were included, the statutory charge would consume the entirely of the agreed damages. The LAA were thus invited to intervene in the proceedings. They initially stated that they would apply the statutory charge. However, their eventual position ‘at the 11th hour’ was that they would NOT apply the costs of the care proceedings to the statutory charge.

23) Because the LAA had taken so long to confirm its position, the LA agreed to pay H’s costs only up until the date the LAA were invited to intervene. All costs incurred thereafter should be met by the Lord Chancellor’s Department. It was argued that the provisions of s.51 SCA and CPR r.46.2 clearly provide the court with the power to make a costs order against a third party and the behaviour of the LAA justified the making of such an order. Keenhan J agreed he had the power to make such an order and he would do so. He confirmed that £21,500 was the appropriate sum of damages to be awarded to H.

24) Keehan J made it clear that he understood and deprecated the impact of the statutory charge, commenting at paras 120 and 121 of his judgment. NB SEE EDIT ABOVE AND THE NEW GUIDANCE FROM THE LAA. 

The issue I raise, in the context of HRA claims brought by children, and by parents, during the currency of pending care proceedings, is whether it is just, equitable or reasonable that damages awarded to a child, or to a parent, as a result of breaches of his/her Convention Rights by one organ of the State should be recouped by another organ of the State in respect of public law proceedings which would otherwise not be recoverable. Public funding in such cases is non means tested and non merits based. Furthermore, save in exceptional circumstances, the local authority issuing the care proceedings is not liable to pay the costs of any other party: Re T [2012] UKSC 36.
I very much doubt that such a recoupment is just, equitable or reasonable. In the vast majority of cases the effect of the recoupment of the child’s or parent’s costs of the care proceedings will be to wipe out the entirety of the HRA damages awarded. In this event, the child or the parent will not receive a penny.

 

General guidance offered by Keehan J

25) He discussed the judgment of Munby J (as he then was) in Re L (Care Proceedings: Human Rights Claims) [2003] EWHC 665 (Fam), [2003] 2 FLR 160 which was expressly approved by and received the “whole-hearted endorsement” of the Court of Appeal in Re V (Care Proceedings: Human Rights Claims) [2004] 1 FLR 944, per Wall LJ at para 98. Re L drew an important distinction between those cases where HRA issues arise when care proceedings are on-going and where care proceedings have come to an end. In the latter case, the appropriate remedy may well be a free-standing application under section 7(1)(a) of the 1998 Act. However, if care proceedings are on-going, the President was very clear that HRA claims should be dealt with within the context of the care proceedings and by the court which is dealing with the care proceedings.

26) Keehan J was clear that the present case was an example of when it was permissible to issue a separate application for a HRA and that it was likely to be a tactical necessity if damages were sought, saying at para 115

…the decision in Re L, and the decision in Re V, may be distinguished from proceedings in which a HRA claim is pursued and damages are sought. Therefore, where the remedy sought in the HRA claim is not limited to injunctive or declaratory relief but includes a claim for damages, it is almost inevitable that those representing the Claimant will be well advised to issue separate proceedings and to seek the issue of a separate public funding certificate because of the potential applicability of the statutory charge in respect of any HRA damages awarded.

 

SW & TW (Human Right Claim: Procedure) (No1) [2017] EWHC 450 (FAM)

27) Another judgment of Cobb J, this sets out the ‘essential procedural points’ for making at HRA claim. See paragraph 3. Applications for ‘substantive relief’ should be issued as civil proceedings by way of a Part 8 CPR 1998 claim even if within existing CA proceedings.

28) Key points
a) claims for substantive relief such as declarations and/or damages should be issued formally, (NOT by introducing it in a skeleton argument!)even if made within existing proceedings; if the party is seeking to “rely on the Convention right or rights” (section 7(1)(b)) within the CA 1989 proceedings to influence the manner in which the family court exercises its powers, a lesser degree of formality contemplated by rule 29.5 may well be appropriate
b) A child claimant in HRA 1998 proceedings requires a litigation friend appointed under Part 21 of the CPR 2010; the appointment of a guardian or litigation friend for this type of claim is not effected under rule 16 FPR 2010. Cafcass cannot authorise its officers to act as litigation friends to children claimants, having regard to its functions, which are set out inter alia in section 12 of the Criminal Justice and Court Services Act 2000 (CJCSA 2000) moreover, Cafcass does not, as a matter of policy, support Children’s Guardians acting as litigation friends in HRA 1998 proceedings;
c) It is therefore not appropriate for a Children’s Guardian who has been appointed in specified CA 1989 proceedings to act as an informal litigation friend, or ‘front’ the claim as if he/she is a litigation friend, in a related HRA 1998 claim. The status of litigation friend can only be bestowed following one of two recognised formal processes – either the filing of a certificate of suitability under Part 21.4(3)/Part 21.5(3) or pursuant to court order (Part 21.6);
d) Given that the CPR 1998 applies to these claims, the regime of Part 36 CPR 1998 (‘Offers to Settle’) applies to them;
e) The full costs regime in Part 44 CPR 1998 also applies, including (in contrast to the position in family proceedings) the general rule that ‘costs follow the event’ in HRA 1998 claims (CPR, Part 44.2(2)(a): “(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party”; see also CZ v Kirklees MBC [2017] EWFC 11 at [61]));
f) the publicly funded claimant in a HRA 1998 claim who is also publicly funded in associated (or ‘connected’: section 25 Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO 2012)) proceedings, is vulnerable to a claim for recoupment of the costs of both sets of proceedings by way of statutory charge from any award of HRA 1998 damages;
g) In HRA 1998 proceedings, the Legal Aid Agency may issue a publicly funded certificate for a claimant to pursue declarations only, and not damages, as it did in this case, for the father; if this is so, this may have implications for (a) entitlement to any public funded remuneration for the lawyers for the work done on seeking a damages award, (b) the extent to which the successful claimant can recover any costs referable to pursuit of the claim for damages from the Local Authority if they have not been authorised to expend costs in pursuit of the same, and/or (c) the ability of the LAA to recoup funds from the damages (applying the statutory charge) for work done in respect of which there was no public funding certificate;
h) PLEASE think hard about settling! This case illustrates once again that the cost of pursuing relief under the HRA 1998 can very swiftly dwarf, or indeed obliterate, the financial benefits sought. Many such cases are surely suitable for non-court dispute resolution (NCDR) ….Parties in cases of this kind would do well to remind themselves of the comments of the Court of Appeal in Anufrijeva v LB Southwark & others [2003] EWCA Civ 1406 [2004] 1 FLR 8 at paras 79-80:

Can anything be done to avoid the statutory charge?

NOTE EDIT ABOVE AND NEW GUIDANCE FROM THE LAA

29) Free standing applications (BUT note implications of increased procedural formality)
30) Costs orders – but bear in mind litigation conduct
31) Section 17 of the Children Act 1989 section 17(7) allows cash payments.
32) General wellbeing provision of the Local Government Act 2000 – section 2(4) allows the LA to give financial assistance to any person
33) Complaint pursuant to section 26 of the Children Act 1989

Damages awarded in other cases – RANGE approximately £3k-£70K

34) P, C, S v the UK [2002] the European court awarded each parent €12,000 for breaches of their Article 8 and 6 rights in a case which involved removal of a baby at birth. This case also has some useful commentary as to how damages should be assessed.
35) Northamptonshire CC v AS [2015] – damages £16K.
36) Ferrari v Romania in the European Court of Human Rights in April 2015 where a father was awarded €7,500 after the state failed to properly engage with Hague Convention proceedings and caused delay.
37) In re A (A Child) in August 2015, the mother was awarded £3,000 for unlawful removal of her child.
38) Medway Council v M and T October [2015] awarded £20K to both mother and child for unlawful use of section 20 accommodation under Children Act 1989.
39) B (A Child) [2016] EWFC B10 January 2016 – £5K awarded for 3 year delay in revoking placement order that meant B lost out on developing a relationship with his siblings.
40) Case Soares de Melo c. Portugal (Application No 72850/14) [Feb 2016] award of €15,000 for decision to have children adopted without offering family sufficient support.
41) X, Y & Z re (Damages: Inordinate Delay in Issuing Proceedings) [2016] EWFC B44 (23 February 2016) – £65K awarded, highest level of damages known to date for misuse of section 20, and particular criticism of the failure of two IROs to act.
42) BB (A Child) [2016] 27th June EWFC B53 £7,500 awarded for misuse of section 20.
43) GD & BD (Children) [2016] 10-18 October 2016 EWCH 3312 – example of very poor police, LA and legal practice. £10,000 awarded to the mother and £5,000 to each child.
44) London Borough of Hackney v Williams and Anor [2017] – Court of Appeal sound the warning that £10K awarded at first instance was too high (in the event the court did not find a breach of statutory duty so no damages were awarded at all)
45) CZ (Human Rights Claim: Costs) [2017] EWFC 11 – £3,750 to each parent and child for unjustified removal at birth for about 3 weeks. However, costs likely to be completely absorbed by the statutory charge – publicly funded costs in region of £100K.