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Court of Appeal confirms it can override the capacity of a 16 year old who wishes to take cross sex hormones

Background

I represented the mother at the first court hearing in April 2024 and have written about it here. These proceedings involve a 16 year old girl who for several years expressed the wish to transition to be seen as the opposite sex. Her parents had separated. The father was very supportive of transition, the mother implacably opposed and she made application to the court.

The court were prepared to support the mother and deny any medical intervention while the child was under 16, but once that age is reached, the Family Law Reform Act 1969 says that a child with mental capacity should be treated as an adult when making decisions about medical treatment.

I argued that the High Court had the power to override a 16 year old’s ability to consent to a medical intervention that was unevidenced and highly controversial; there could be no ‘informed consent’ in such circumstances. The Cass Review – which was published a week before the court made its decision– was clear that prescribing hormones to 16 year olds, should be approached with ‘extreme caution’ and required a second opinion from an independent multi disciplinary team.

The Gender Plus clinic had been regulated by the Care Quality Commission in January 2024 to provide cross sex hormones to children and the child wanted a six month assessment there. However, we all agreed that no private provider would be able to meet the Cass/NHS requirements of an independent second opinion offered by a multi disciplinary team. The mother wanted the court to adjourn the matter, have oversight of any assessment by Gender Plus and be prepared to deny treatment if it did not consider it in the child’s best interests. The mother further argued that provision of medical transition should be considered a ‘special category’ of treatment, over which the courts should have continuing oversight.

The first court did not agree and dismissed the proceedings, on the basis the child was 16 and therefore benefited from the presumption of capacity in the Family Law Reform Act. She is intelligent with no impairment to her brain functioning and Gender Plus was a regulated provider. There was thus no ‘realistic prospect’ of overriding the child’s wishes and the continuing proceedings were causing distress and emotional harm.

The Court of Appeal agreed to reconsider that refusal, as a matter of public interest. It heard submissions on 12^th December and judgment was handed down on 19^tth December – a remarkably quick turn around.

The judgment of the Court of Appeal

The Good

The fundamental question before the court was if the Judge had been right to refuse to continue proceedings to allow the court to consider the outcome of the Gender Plus assessment.

The mother made the following points

The legal and regulatory landscape for gender dysphoria treatment was changing rapidly
The final Cass Report was published on 10^th April, a week before the hearing
The Government was continuing to take steps to respond to the Cass Review
Gender Plus was a private provider, whose procedures diverged from the NHS protocols.

Thus, cases concerning this kind of intervention should be a ‘special category’ of case with continued court oversight.

The Court of Appeal did not agree this was a ‘special category’ of treatment but agreed ‘although not without hesitation’ in saying that the Judge had been wrong to refuse to keep the court proceedings alive, for two combined factors (see para 7)

Gender Plus could not satisfy the recommendations made in the Cass Review, particularly the requirement that every case required consideration by a national multi disciplinary team

The Cass Review had only just been published at the time of the first court’s decision, and the Government was taking various steps to implement it in ways the court could not predict but which might ‘affect an appropriately objective view of where the young person’s bests interests lay’.

The Court of Appeal stated (para 38) that the judge had not put enough weight on the ‘rapidly changing regulatory environment and the situation of private providers like Gender Plus in light of the recommendations made by the Cass Review’. The court was also struck by the first Judge’s observation that she was ‘not sure’ if she shared the Guardian’s confidence that the child was able to consider all the evidence about treatment in a ‘balanced and unbiased’ way.

The wiser course of action was therefore to keep proceedings alive until the Gender Plus assessment was completed and then it can be considered if necessary by the court.

This is a very significant decision. The Guardian and the father argued there could be no justification at all for an adjournment – the child wanted the treatment, the child was 16, WPATH guidelines were followed, the doctors had to be trusted and that was that. Prior to the Cases Review, this argument would have been accepted. That the Court of Appeal now rejects it, is a significant blow to those activists who continue to assert that medical transition is not merely uncontroversial but ‘life saving’ It is a welcome reinforcement by the Court that the Family Law Reform Act does not provide a child with an absolute right to consent or refuse treatment, and is a recognition by the court that the medical profession requires continued oversight in this area. This contrasts with the approach of the Court of Appeal in Bell and the refusal there to get involved at all with the doctor/patient relationship – even when that patient was a child who could not possibly consent.

Further, this judgement is positive news for the application for judicial review of the decision by the Care Quality Commission to regulate Gender Plus, as the fundamental premise of that legal action is that the CQC acted unreasonably in regulating a private provider which could never meet the standards now demanded by Cass/the NHS. REF JR It also conceivably gives impetus to further challenges to the Secretary of State for Health for permitting cross sex hormones to be provided to teenagers without at least the prior approval of the court.

The bad

So lots of good stuff. However, the judgment is in other respects disappointing. It dodges and fudges what in my view is the central issue; the court needs to step in to protect children from highly controversial medical interventions, the evidence for which as identified by the Cass Review is ‘remarkably weak’. Wes Streeting, when announcing on XX the permanent ban on prescribing puberty blockers outside of a clinical trial, declared that it was a ‘scandal’ that such interventions had been allowed in the absence of a clear evidence base. I agree.

Despite all this, the Court of Appeal rejected the invitation to treat medical transition as a ‘special category’ of treatment, meriting continued court oversight and instead reduced the issue to a much more narrow one of keeping open the possibility that the court might need to decide whether hormone treatment was or was not in this child’s best interests at some future point.

If the likely sterilisation and deprivation of adult sexual function for a child, based on ‘best practice’ that is anything but, does not merit being a ‘special category’ of medical intervention, then I cannot understand what would be. The Guardian at the first hearing had many meetings with the child but failed to talk at all about potential future sterility. Neither the Guardian nor the first court considered this was a problem. The father and Guardian continued to rely on WPATH guidelines before the Court of Appeal, despite now ample evidence from the Cass Review and cases in other jurisdictions that they are not reliable – see for example Boe v Marshall Boe v. Marshall – Alabama Attorney General’s Office and the Cass Review paras 47, 48, 9.22, 9.23, 9.32, 12.28, 12.30.

As the mother’s solicitor Paul Conrathe commented after the judgment

The Court stated that such protective measures were for regulators and Government. With the regulator, the Care Quality Commission, deemed unfit for purpose by a recent independent review, it is for Wes Streeting to step up and put in place protections for vulnerable children receiving powerful irreversible experimental treatments in the private sector. The profit motive, ideological zeal of clinicians and exceptionally poor evidence base for this treatment mean there is a desperate need for urgent regulatory protection in the private sector

I appreciate there are obvious and necessary public policy reasons as to why any court should not be seen to ‘take sides’ in any area of controversy. But nor should any court claim controversy or uncertainty when none exists. The Cass Review searched over four years and could find no reliable evidential basis for medical intervention for childhood ‘transition’. In my view, no child has the capacity to consent to it. This is an area almost entirely captured by political activists. The Court should have been willing to acknowledge this, or at least entertain the possibility, having before the wholesale adoption of Dr Cass’s recommendations by the NHS and Governments of both political colours.

But instead, the Court of Appeal makes a bizarre and concerning reference at para 19

The Cass Review has received wide publicity. Like the subjects it covers, it is controversial. Strongly held views have been expressed on both sides of the debate. Nothing I say in this judgment should be construed as expressing support for one side or the other.

‘Strongly held’ views have indeed been expressed, to the extent that Dr Cass may no longer freely travel on public transport, given the threats made to her safety by some who express such ‘strongly held’ views. I should not have to point out to the Court of Appeal, that the weight and influence of one’s views is not determined by the vehemence with which they are expressed. The CoA states explicitly that the Cass Review should be considered ‘controversial’ without providing any detail as to the nature and quality of that controversy and the ‘evidence’ on which Cass’s detractors rely – which has been routinely poor. The Court of Appeal has now given these detractors credibility which they do not remotely deserve and this is gravely disappointing.

For example this is what journalist Jesse Singal had to say about the white paper ‘An Evidence based Critique of the Cass Review’ published by the ‘Integrity Project’ which is associated with but NOT endorsed by Yale University. Yale’s “Integrity Project” Is Spreading Misinformation About The Cass Review And Youth Gender Medicine

McNamara et al. is an exceptionally misleading, confused, and fundamentally unprofessional document. The authors make objectively false claims about the content of the Cass Review, badly misrepresent the present state of the evidence for youth gender medicine, and, just as alarmingly, exhibit a complete lack of familiarity with the basic precepts and purposes of evidence-based medicine. In some cases, the errors are so strange and disconnected from the Cass Review that they can only, realistically speaking, be attributed to malice, a severe lack of curiosity and reading comprehension, or both. This might sound harsh, but you’ll see what I mean shortly. It is genuinely surprising that any of the co-authors would agree to put their names on a document like this.

Conclusions

I agree no court can play politics or attempt to regulate the medical profession. But this is about evidence, the best interests of children and the exercise of the ancient parens patriae jurisdiction. When the medics have no clothes on, the court should be willing to notice.

Despite all this, we must not lose sight of the significance of this judgment. We have come a long way from 2019 and the High Court’s enthusiastic endorsement of socially transitioning a four year old. The Court of Appeal has confirmed it is willing to override the wishes and feelings of a capacitious child who wants to medically transition, if to do so is in that child’s best interests. As more cases about ‘medical transition’ come to court in jurisdictions all over the world, as more detransitioners seek damages for what was irreversibly done to them, the more the courts will have to step up and do their job; to protect children when other adults have lost their minds or any allegiance to evidence.

And I offer very great thanks to the mother in this case, who has done her best to protect her daughter in what has been gruelling legal proceedings. I hope has made it easier for other children to be protected as well.

The Cleveland Scandal Revisited

I was recently contacted by the journalist Beatrix Campbell with a link to an address by the President of the Family Division Sir Andrew McFarlane to the British Society of Paediatric Radiologists. He said this about the Cleveland Inquiry, which has loomed large over family lawyers for the last 30 years. Speech by the PFD: Suspected Physical Abuse of Children – Experts in the Family Court – Courts and Tribunals Judiciary

I suspect that those in the audience, like me, had understood what had happened in Cleveland arose from misdiagnosis by the two paediatricians. In that regard a recent book by journalist Beatrix Campbell ‘Secrets and Silence’ may be of interest. All these years later, with the ability to inspect previously confidential documents in the National Archive, the book explains that most of the children were probably the victims of sexual abuse, and therefore the diagnosis by medical professionals was likely to be correct. The book reveals a lack of transparency which has had lasting impacts. As a result, there as been a continuing false belief that the Cleveland children did not experience sexual abuse and that the crisis was a result of over-zealous and incompetent practice.

I was dismayed to learn that I too had internalised those two false narratives, of no abuse and professional incompetence, if slightly reassured that they were shared by none other than the President.

Back to Basics – what was the Cleveland Inquiry?

Campbell invited me to consider this. I agreed it was important. So back to basics. Sadly the Cleveland Inquiry report is not available on line. The best I could find was a useful summary published by the British Medical Journal 190.full.pdf

The report of Lord Justice Butler-Sloss on her inquiry into child abuse in Cleveland was published on 6 July (HMSO, Cm412).It was initiated in July 1987 following a ‘crisis’ where 125 children were diagnosed as having been sexually abused, thus overwhelming local police, hospitals and children’s services. 98 children were eventually returned home and 27 wardship cases were dismissed.

In June 1986 Susan Richardson had been appointed to the new post of ‘child abuse consultant’ in Cleveland. In January 1987 Dr Higgs began working there as a consultant paediatrician and the two began working closely together.

In early 1987 Dr Higgs found 10 out of 11 children who had lived in one foster placement showed signs of anal abuse and were admitted to hospital. The director of social services Mr Bishop became concerned at the scale of this development. By the end of April a rift developed between Dr Higgs and the police, who did not agree with her diagnoses. The police expressed particular scepticism about the value of reflex anal dilation [RAD] as a diagnostic sign. Mrs Richardson continued to support Dr Higgs and by June ‘unprecedented numbers’ of children had been admitted to hospital under ‘place of safety orders’.

The police and social workers continued to diverge in their approach; the police expressing caution and requiring substantial corroboration, Mrs Richardson requiring routine place of safety orders and suspension of parental contact with the children in case they interfered with the children’s ‘disclosure’.

By June two further waves of admission stretched ‘accommodation and nursing services to breaking point’, parents formed a protest group and media attention ensued. As Anna Glinski the Deputy Director of the Child Sexual Abuse Centre described it Setting the story straight on Cleveland | CSA Centre

A public outcry followed, involving local politicians, local and national media, parents, and professionals from different agencies with safeguarding responsibilities, who could not accept that so many children had been sexually abused. The result was local and national hysteria and panic that over-zealous practitioners were wrongly identifying child sexual abuse. Then the professional judgement of those working with the children was challenged.

The Cleveland report itself did NOT make any findings as to whether the children were in fact abused. It focused on procedures, acknowledging the dedication and commitment of Dr Higgs and Mrs Richardson. But various pressures led to a breakdown in communication between agencies and one of the most worrying features of what went wrong was the ‘isolation and lack of support for parents’

Dr Higgs was found to have placed undue reliance on physical signs alone of sexual abuse, in particular the RAD test and too fixed in her belief that children should be separated from their parents to permit ‘disclosure’. The BMJ described it as ‘her relentless pursuit of her goals, which never seemed to be interrupted by a pause for thought, caused unnecessary distress to children and their families’.

Lady Butler Sloss spoke to Campbell 30 years later; her view was that the doctors had ‘jumped the gun’, which destroyed the credibility of other evidence and led to premature removal of the children.

In essence, this was about disagreements and failure of communication of adults in different departments which had been allowed to obscure the needs of children. The interagency ‘squabbles’ become increasingly personal, not assisted by the bias of some of the media coverage.

One criticism of Dr Higgs was that she failed to recognise the inadequacy of resources in Cleveland to meet the crisis. This is troubling. Of course, we cannot ignore the reality of lack of resources, but this reality should not influence the outcome of an assessment of whether or not a child has suffered or is at risk of suffering harm.

The inquiry was set up to look at processes and could not evaluate the accuracy of ‘diagnostic techniques’ in sexual abuse of children. However, only 18 of the 121 children were ‘diagnosed’ on the basis of anal dilation alone. Nor did the inquiry discredit it as a technique. 27 out of the 29 experts who gave evidence considered RAD to be relevant to the recognition of sexual abuse. It was abnormal and suspicious, requiring further investigation but is not in itself evidence of anal abuse. Constipation could also be a cause.

Of the recommendations made by the Inquiry, the BMJ considered the most important

the requirement to recognise the child is a person not simply an object of concern and adults should explain to children what is happening and not make promises that can’t be kept.
Children should not be subject to repeated examinations or confrontational ‘disclosure’ interviews for evidential purposes.
No one person or agency should make a decision in isolation as to whether a child has been sexually abused.
The speed and level of any intervention planned should be considered very carefully.
The medical ‘diagnosis’ should not be the prime consideration except in straightforward cases.

I agree with all of that. It was true in 1987, it is true and vital in 2024. So where are we now?

The legacy of Cleveland

Campbell has done important work investigating the National Archives to uncover information that shows between 70-90% of the 121 cases, the ‘diagnosis’ of sexual abuse was correct (see Treasury Official R.B. Saunders memo to Chief Secretary John Major 5 July 1988). The figure of 98 children who went home given at the time did not clarify how many abusers had been removed from the home prior to return

However, Campbell also discovered documents recognising that identifying the correct numbers of children abused was ‘dangerous territory’ as it could result in demands for more money and resources. This is shocking. Campbell’s over arching narrative is that this desire to save money rather than children has infected safeguarding practice ever since.

Anna Glinski on reviewing Campbell’s book, notes 3 ‘myths’ that she is concerned Cleveland cemented

children commonly make false allegations
children can easily be ‘led’ by professionals and
that sexual abuse by a family member is rare.

As a family practitioner who stared her law degree in September 1989 I have grown up in the shadow of Cleveland – and the Orkneys which followed. I accept I had internalised a false belief that most of the children at Cleveland had not been sexually abused and the doctors had been incompetent.

I accept that far more children are sexually abused that services identify, or that we would like to think. Scale & nature of abuse | CSA Centre . It has taken us a long time to accept that children were physically abused in their homes, recognition of sexual abuse has lagged even further behind.

I accept that children at risk of harm do not the resources they need and this has been obvious in the lack of residential care and mental health provision for decades. It is scandalous that the contemporaneous discussions about funding showed a deliberate plan to direct attention away from sexual abuse of children.

However, I do not think it is correct or helpful to extrapolate from this the assertion that the Cleveland Inquiry created enduring ‘myths’ about false/exaggerated allegations and the suggestibility of children that has ‘stunted’ child protection for decades. Far from it. I see very worrying evidence about the growth of various lobby groups who would appear to wish to do away with any forensic process entirely once an allegation of abuse is made.

I cannot usefully comment on the rate of ‘false allegations’ as deliberate lies told by older children, other than to say that has been rare in my practice over 30 years, no more than a handful of cases.

However, the suggestibility of young children is well established along with the ‘impossible’ allegations younger children make. As examples from my own practice, the little girl aged 3 who was confident that the police officer interviewing her lived under her bed, or the little boy aged 5 who asserted his father dressed up as a wolf and stabbed his bottom with scissors, in the absence of any medical evidence at all. I am afraid that ABE interviews (Achieving Best Evidence) continue to be of poor quality and often opportunities lost.

Campbell dismisses any suggestion that children lie, fantasise or that their evidence can be contaminated as ‘fables’ and that to allege parental alienating behaviours is simply ‘playing a card’. My 30 years as a family lawyer shows me beyond doubt that parents – mothers and fathers – can act deliberately to influence children against the other parent. In my experience children say things that are not true and they can be influenced to say them.

Campbell rather skates over the US ‘Satanic Panic’ of the 1980s, which in my view highlighted most alarmingly the dangers of exposing suggestible children to over zealous investigators. She mentions the McMartin day care case and its ‘alarming’ medical signs of gross abuse. But I am not sure what medical evidence Campbell is relying on; I note that in 1986 the Attorney General dropped charges against five of the defendants, saying the case was ‘incredibly weak’. No convictions ensued of the remaining defendants.

Margaret Kelly Michaels of the Wee Free Day Care is not mentioned by Campbell. She was sentenced to 47 years in 1988 but freed after 5, the New Jersey Supreme Court declaring that the interviews of the children which convicted her, were highly improper and utilised coercive and suggestive methods.

Campbell considers the ‘Satanic Panic’ cases are credible, and the children might be reporting ‘real events’ as we can see from David Aaronovitch’s response SATANIC ABUSE: A REPLY TO BELIEVERS – BarristerBlogger to her complaint about his reporting on the ‘Hampstead Hoax’ case of P and Q (Children: Care Proceedings: Fact Finding) [2015] EWFC 26 (Fam) High Court Judgment Template where two children were physically abused by their mother’s boyfriend to make fantastical allegations that babies were being murdered and eaten by local parents and teachers in some sort of Satanic abuse ring.

Campbell makes no mention of this case in her book, possibly because it is such a clear example of how children can be induced to say things that are not true and that goes against her hypothesis that such an assertion is a myth or a fable. Of course the P and Q case is a very extreme example. Most children are not tortured into making fantastic and false allegations. Most cases will be far more mundane and messy that this. I accept that children often find it very difficult to talk about being sexually abused, and for young children it is particularly difficult. But that is not a reason to assume that sexual abuse must be happening and to subject a child to repeated interviews, to say what the interviewer wants to hear. This kind of practice was rightly criticised in the Cleveland inquiry and again in the Orkneys investigations that followed.

Far from Cleveland acting as a deterrent to accepting sexual abuse, it is clear that a strong lobby group has been established over the last few decades which asserts that sexual abuse is rife and that the family courts routinely fail female victims, particularly blaming mothers who raise allegations against fathers as practicing ‘parental alienation’. Social workers still appear to be trained to ‘believe’ the child and it has proved impossible to dislodge the word ‘disclosure’ from professional reports. For example, in one case I cross examined a social worker who had questioned 2 children about the same event and got 2 very different answers. Which child did she believe? Silence.

We know that when bizarre comments or compromised interviews are then filtered through a parent or professional who is keen to prioritise one narrative over another, the consequences for a fair hearing and hence uncovering anything like the truth, are obvious and severe. The Henriques report into Operation Midland and the fantasies of Carl Beech, demonstrated the catastrophe that can follow when fantasy is accepted at the outset without any kind of sceptical curiosity.

Conclusions

I understood the key finding of the Cleveland Inquiry to be not that the doctors or social workers were stupid and that children are liars, but rather that abuse is NOT a single agency or individual determination. That is as true now as it ever was. Doctors cannot ‘diagnose’ sexual abuse, it is not an illness. Rather they report and interpret clinical signs and give clinical opinions. Signs may ‘indicate’ or ‘suggest’ but can rarely provide a definitive answer alone. ‘Normal’ is the expected finding on examination in cases of abuse and non abuse, as normal examination is found in the majority of child sex abuse cases, even where the perpetrator has confessed. Multi agency working is essential and after Cleveland most suspected abuse cases were referred to community paediatricians in multi disciplinary teams. ‘

Campbell asked Bulter Sloss, 30 years on – what did she think professionals should do about the crux of Cleveland’s crisis: strong physical signs but little or no narrative? ‘She was candid: ‘I don’t know’. As with so much in the family justice system, we are faced with the ‘least worst option’. The family justice system puts proof of facts at it heart. We avoid the use of the word ‘disclosure’ as it means the ‘secret fact made known’. We refer to allegations because it is not the job of the lawyers, police or social workers to declare the ‘truth’ – that can only be the job of the criminal or family court.

As lawyers we owe first allegiance to the forensic process. We are not counsellors, psychologists or support workers. We work on the basis of what we can and cannot prove. And the key lessons from Cleveland remain important, most fundamentally that children are not just objects of concern but actual people who deserve protection and explanation. I appreciate that this call for recognition of children as human rings hollow in the light of what Campbell has uncovered about the financial motivations to cover up widespread abuse. That is a shameful failure. But I do not accept it is proof of continuing deliberate policy to deny the existence of sexual abuse of children. If anything, my professional practice causes me great concern that many would like to jettison any kind of forensic process entirely the moment an allegation of sexual abuse is raised.

Campbell argues that the medical scrutiny of children’s bodies is never neutral, it is always political. I agree with that up to a point. It is clear to me that issues of violence and abuse in the family justice system are often filtered through a particular ideological lens; either the family justice system is a tool of misogynistic oppression or it is rabidly anti fathers. A plague on both their houses. All I can do is stand firm in support of the rule of law, due process and evidence. Campbell states that this position is indicative of ‘hauteur’ or even ‘contempt’ as I present myself among the ‘objective, disinterested observers of other professionals causing havoc…’ I don’t accept that observation. Any one who begins an investigative process laden with any kind of ideological baggage or from any other starting point than ‘listen and take seriously’, risks corruption, failure and children left unprotected or further traumatised by inept procedures.

But I do accept to do justice to those principles of law, we need a child protection system that is fit for purpose. And that comes back round again to money. That the Cleveland Inquiry was used to promote a false narrative about the prevalence of child sexual abuse is shocking and I am grateful to Campbell for bringing that message very firmly home and correcting my false beliefs.

But the love of and the necessity of money cuts both ways. Many have built professional reputations and livelihoods on their ideological commitment to particular causes and effects of abuse and the funding they can attract. I note that shortly after the McMartin investigations began in the US, the budget of the National Center on Child Abuse and Neglect (NCCAN) increased from $1.8 million to $7.2 million between 1983 and 1984, increasing to $15 million in 1985. Only $5 million was directed towards physical abuse and neglect.

It is neither ‘hauteur’ nor ‘contempt’ to demand fair and rigorous investigation into child abuse and to counsel caution against those with an ideological drum to beat. It is essential. And I don’t think it’s the legacy of the Cleveland Inquiry which is the biggest – or even any – part of the problems we face today. Failure to investigate issues of child abuse properly or at all is not explained, in my view, by some sort of ideological denial cemented by the Cleveland Inquiry, but rather the far less sexy but even more dangerous lack of resources, overwhelming case loads, the sheer scale of child poverty and the lack of effective early intervention for families.

Campbell, B Secrets and Silence: Uncovering the Legacy of the Cleveland Child Sexual Abuse Case

Parents seek an injunction to prevent child having gender affirming treatment

The court dismissed the parents’ applications, finding there was no evidence that EE at age 17 lacked capacity and no evidence that she sought imminent treatment. There was no ‘matter’ before the court to undertake an assessment of capacity. This case has provoked controversy about the extent to which any person who wants to remove healthy parts of their body can be said to have ‘capacity’ but the parents’ legal action appeared doomed at the outset on the basis of the evidence they presented and their obvious hostility to ‘LGBT’.

I use she/her pronouns for EE as she is female.

Judgment was handed down by Mr Justice MacDonald in September 2023 in the case of GK and LK v EE (formerly RK).

The facts

EE’s parents applied to court in June 2023 under the inherent jurisdiction and via the Court of Protection under the Mental Capacity Act 2005 (MCA) with regard to their 17 year old daughter, who turned 18 shortly after the judgment. EE self identifies as a non binary lesbian and at the time was in the care of the local authority via section 20 accommodation. The parents wanted to instruct experts to assess her capacity and asked for an injunction preventing EE from having any kind of gender affirming medical treatment, arguing that she lacked capacity to make decisions about this.

EE and the local authority told the court that the parents were driven by prejudice against EE’s gender identity and pointed out that EE had no current plans for any medical treatment. Therefore, the court had no ‘matter’ under the MCA to make any decision.

Further, there was no sufficient evidence to rebut the presumption that EE had capacity under section 1(2) of the MCA. EE’s GP records contained no diagnosis of mental illness. The parents claimed EE had been diagnosed with ‘schizoptypal disorder’ by a psychiatrist in country X, from which the family originated, moving to the UK when EE was three.

EE could not recall speaking to any foreign psychiatrist and had received no medication. She alleged that her parents had been physically and emotionally abusive to her, which they denied. But there were police records that in July 2022 EE was assaulted by her parents who ‘did not like’ that she was ‘LGBT’. She asserted that she had tried to talk to her parents about this since she was 11, but they were very hostile and she gave up aged around 13/14.

There was a child protection medical and EE was found to have non accidental injuries, but there was no mention of any mental health issue or personality disorder in any of the reports at the time. A child protection conference followed, the parents now asserted that EE was undergoing a psychotic episode. EE returned home in August on the basis that there would be no further physical or emotional abuse from her parents.

But EE then discussed with her parents the desire to have ‘top surgery’ i.e. a double mastectomy to remove her breasts. The parents asked her to postpone any decision until she was 25 and EE asserts that they became increasingly controlling, insisted she undergo online therapy and persistently made homophobic/transphobic comments. The local authority undertook a Child and Family Assessment, with no concerns for EE’s mental health. By November 2022 matters had seriously degenerated to the point that EE’s father attempted to restrain her and she hit him. EE then agreed to be accommodated by the local authority.

The parents were very unhappy with this situation and asserted that the local authority had referred EE to Mermaids and was encouraging her to take testosterone. EE had a further medical assessment in February 2023 which raised no concerns and recorded a significant improvement in EE’s mood and outlook since leaving home. She expressed gender dysphoria, but had no current plans to engage in medical treatment.

The parents argued that EE lacked capacity to make decisions about any such treatment and relied upon the Cass Review that social transition should not be seen as ‘neutral’. The parents asserted that the wider paternal family had a history of mental health issues, EE had self harmed, used a binder, abused alcohol and drugs and these issues along with others showed that EE was unable to retain, use and weigh relevant information relating to gender affirming treatment. Therefore experts were needed to assess her.

The law

EE was 17 at the relevant time but was very close to 18, when the court would cease to have jurisdiction under the inherent jurisdiction. Therefore, the judgment focused on the legal principles under the MCA. This Act allows the court to make decisions in the best interests of those aged over 16 years, if they are found to lack capacity to make their own decisions. Section 1 of the MCA sets out its key principles – a person is assumed to have capacity, and cannot lack capacity just because he makes an unwise decision.

EE could only lack capacity if her inability to make decisions was due to ‘an impairment of, or a disturbance in the functioning of, the mind or brain‘ and due to this she could not understand information relevant to the decision, retain the information, use or weigh the information, or communicate her decision. Capacity is assessed in relation to the specific decision at the time the decision needs to be made.

Therefore the court couldn’t make any decisions under the MCA as there was no ‘matter’ to be decided; EE had no current plans for any gender affirming treatment. Even if there had been a ‘matter’ before the court, not only does the MCA presume capacity, EE had ‘legal capacity’ under section 8 of the Family Law Reform Act 1969 which sets up a rebuttal presumption that 16 year olds can consent to medical treatment.

The court examined the interplay between the MCA, FLRA and ‘Gillick competence’ in para 48, approving the position that a child under 16 must be found ‘Gillick competent’ to provide consent to medical treatment. Once the child is 16, their legal capacity is assumed and their mental capacity is examined under the MCA. Thus, absent any evidence that EE lacked capacity, she could at 17 make a decision to have gender affirming treatment. There was no need for any expert evidence.

The court noted at para 60 the kind of evidence it would need to engage with the applications made by the parents

In the absence of any gender affirming treatment being proposed at
this time, the court does not have before it any evidence as to what such treatment involves, what the potential dangers and side effects of such treatment are, the nature and extent of the preparatory counselling with respect to the decision to have, and the consequences of, gender affirming medical treatment and any assessment of the treating clinicians of EE’s capacity to consent to such treatment.

Comment

The court did not make a finding that the parents considered EE mentally ill simply because of her stated sexuality and identification as ‘non binary’ but did comment at para 67 that the court was left with the ‘distinct impression’ that this was the case.

I agree that the evidence is sparse to suggest that gender affirming care has long term positive benefits. I agree it is sad to see EE assert (para 36)

I have thought about gender reassignment for many years, and it is
something that has always been on my mind. I feel quite strongly about this, and I am of the view that my real life would begin once I undergo Bilateral mastectomy, also known as top surgery.

If in fact her ‘real life’ does not begin after the removal of her breasts then of course it is too late to reverse the surgery. It does not seem likely that EE is able at 18 to confidently foresee how she would feel about the amputation of her breasts when she is 30, alongside her possible infertility if she begins taking testosterone.

Many who objected to this decision on social media appeared to share the parents’ views that simply to claim a ‘non binary’ identity or want to remove healthy breasts, was in and off itself evidence of ‘profound mental illness’ that rendered EE incapable of making any decisions about gender affirming care.

But it is not the court’s place to prohibit an entire regime of medical or surgical treatment without compelling evidence. The courts have to place trust and reliance in the medical profession to stick to its own code of conduct. If EE has capacity, and can find a willing surgeon, she has the freedom to make unwise choices. I do not see how the court could have made any other decision on the evidence and the law before it.

I understand that many people were unhappy with this decision, but any changes to the culture around ‘gender identity’ and affirmative treatment will have to come from Parliament and the medical profession. My hope is that the final report of the Cass Review will continue to support therapeutic interventions as first call. If parents do wish to assert that their children lack capacity to make decisions about gender affirming care, then they are going to need to bring hard evidence to the court proceedings, which these parents could not.

While I personally think it is very sad that a young woman would ever contemplate drastic and irreversible surgery so that her ‘real life’ could begin, the simple response is that it is not my life, nor my breasts. EE may well regret such surgery when she is older, but the MCA exists to protect the freedom to make unwise choices. If asked to choose between ‘freedom to’ and ‘freedom from’, I choose the first, every time. And I must extend that freedom to all others with capacity.

Fact finding in private law proceedings – where are we now?

This is the text of a presentation at the St Johns Private Law conference on 14th June 2023

To have or not to have a finding of fact hearing is a key decision in proceedings. Relationships that are ending up in court have ended badly. The adversarial process is undoubtedly harmful to parties and finding of fact hearings cause enormous delay. It can be very necessary to establish what happened, in order to make sensible decisions about the way forward, but the courts are not there to validate either party’s perspective as to why the relationship broke down or how horrible the other one was. The guidance is now very clear – Unless it will be relevant to, and necessary for, your decision regarding the welfare of the child, do not allow the court to be used to litigate such allegations.

These cases can be very difficult to run in practice, given how high emotions can run and how relatively unobjectionable behaviour during a relationship can be seen in a very different light once that relationship has soured. The gulf between the expectations of the client and what the court can deliver is often very wide indeed. The guidance with regard to decisions about findings of fact will be your shield against unreasonable client expectations.

I will examine the following

Some historical context
Summary of the May 2022 guidance
Case law – when it goes wrong

Some historical context

The family justice system is caught between two very polarised views; those who assert it is a tool of misogynistic oppression, with a ‘pro contact culture’ that routinely hands over children to violent men and those who assert it is absurdly pro women and happy to cut men out of their children’s lives. Those of us who work in the family justice system know that both positions are false. We are however very much alive to the problems caused by a system which lacks resources and judicial continuity. It’s fair to say that men and women feel equally traumatised and let down in the majority of proceedings.

Of recent years however, the campaigning groups who characterise the family courts as tools of misogynistic oppression have gained the ascendancy and the ear of the Ministry of Justice. This explains the renewed focus over the last few years on issues of domestic abuse in family proceedings.

We begin with the Victoria Derbyshire show in May 2019, whose eviscerating exploration of the family justice system, prompted the Ministry of Justice on 21^st May to announce that a ‘panel of experts’ would review how the family courts protect children and parents in cases of domestic abuse, and that this would be completed in only three months. I laughed at this remarkably optimistic time scale and I was right to do so – we didn’t see the finished ‘Harm Report’ until June 2020 [Assessing risk of harm to children and parents in private law cases https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/895173/assessing-risk-harm-children-parents-pl-childrens-cases-report_.pdf]

I have been critical of this report as it relies primarily on self selecting accounts from those who felt badly done by the family justice system, with obviously no ability to fact check assertions they made. It was clearly written from the perspective of the ‘misogynistic oppression’ camp, identifying a ‘pro contact culture’ which resulted in ‘systemic minimisation of allegations of domestic abuse’. From my own experiences in practice over 20 years now, I think that is overstating it.

However, it identified other issues with which I can’t argue: resource constraints, working in silos and lack of communication and crucially the adversarial system itself, with parents placed in opposition on what is often not a level playing field in cases involving domestic abuse, child sexual abuse and self representation, with little or no involvement of the child.

The stage was the set for the Court of Appeal decision Re H-N [2021] EWCA Civ 448 where it was argued that the family justice system’s understanding of domestic abuse was not fit for purpose.

The Court of Appeal considered the development of the family courts’ approach to issues of abuse. The definition of ‘abuse’ was expanded in 2017. PD12J paragraph 3 reflects the need to move away from characterising domestic abuse as separate incidents of violence, but looking more to patterns of acts and incidents, including incidents of controlling, coercive or threatening behaviour which can be demonstrated by 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.

We have come a long way from the 1970s and the focus on ‘violence’ only. No one argued before the court that this definition of ‘abuse’ should change and the Court of Appeal concluded therefore that it was fit for purpose. Although the structure of the definition of ‘domestic abuse’ in clause 1 of the Domestic Abuse Bill [‘DAB’] currently before Parliament differs from that in PD12J, the content is substantially the same.

The Court of Appeal therefore concluded:

We are therefore of the view that PD12J is and remains, fit for the purpose for which it was designed namely to provide the courts with a structure enabling the court first to recognise all forms of domestic abuse and thereafter on how to approach such allegations when made in private law proceedings. As was also recognised by The Harm Panel, we are satisfied that the structure properly reflects modern concepts and understanding of domestic abuse

The key guidance is at para 139:

Domestic abuse is often rightly described as pernicious. In recent years, the greatly improved understanding both of the various forms of abuse, and also of the devastating impact it has upon the victims and any children of the family, described in the main section of this judgment, have been most significant and positive developments. The modern approach and understanding is reflected in the ‘General principles’ section of PD12J(4). As discussed at paragraphs 36–41 above that does not, however, mean that in every case where there is an allegation of, even very serious, domestic abuse it will be either appropriate or necessary for there to be a finding of fact hearing, so much is clear from the detailed guidance set out in paragraphs 16–20 of PD12J and, in particular, at paragraph 17.

Summary of May 2022 Guidance from Lady Justice Macur for Judges and magistrates.

Make every hearing count.
Judges must remain in control.
Delay is inimical to child welfare.
It is for the judge to determine the need for a finding of fact. ‘

At the FHDRA / first directions appointment/ to be considered at gatekeeping

If a MIAM hasn’t taken place, ask why not – duty to consider non-court dispute resolution: FPR r3.3.

TRIAGE – what are the real issues in the case. Are they safeguarding concerns?

What is being alleged in terms of domestic abuse – look at definitions at FPR PD 12J [2A] and [3] in addition to PD 12J [14].

Has Form C1A been completed? Is there a response? If so, are there admissions? Can you see a possible way forward?

Have you got enough information to avoid seeking further evidence? If not, consider what is needed in the fact specific circumstances of the case.

The judgment in Re H-N [2021] EWCA Civ 448 (paras 41-49) cautioned against allowing a Scott Schedule to distort the fact finding process (by becoming the sole focus of a hearing), but did not rule out the use of a schedule as a structure to assist in analysing specific allegations. Specific allegations of physical abuse fit well with a schedule, other allegations that require the court to look at a pattern of coercive and controlling behaviour will require a statement. Probably most cases will benefit from both.

Is a fact-finding hearing required?

RELEVANCE, PURPOSE, PROPORTIONALITY AND MITIGATION

Consider:

the nature of the allegations and the extent to which those allegations are likely to be relevant to the making of a child arrangements order;
that the purpose of a fact finding is to allow assessment of the future risk to the child and the impact of any abuse on the child;
whether fact-finding is necessary or whether other evidence suffices; and,
whether fact-finding is proportionate. Do the allegations at their highest go to safeguarding in general or could they be mitigated by supervision of contact or other measures?

If the decision is made to have a finding of fact hearing, then robust case management is required.

The court controls the evidence in the case. FPR r1.1, r1.4, r.4.1 and that the court controls the evidence in the case: FPR r.22.1.

No case should be timetabled to a fact-finding hearing without a properly completed witness template. This will assist the parties and manage their expectations.

Participation directions.

Section 63 Domestic Abuse Act 2021 established a presumption that where a party or witness is or at risk of being a victim of domestic abuse from a party to the proceedings, the quality of their evidence and/or their participation as a party is likely to be diminished by reason of vulnerability and this requires some thought.

Part 3A FPR deals with vulnerable witnesses and their participation in proceedings.. PD3AA para 5.2 requires a ground rules hearing (or ground rules component of a hearing) before the vulnerable person gives evidence. Participation directions are a general case management direction made for the purpose of assisting a witness or party to give evidence or participate in proceedings;

Consideration of FPR r.3A and PD 3AA are mandatory and the obligation to consider vulnerability is the court’s, regardless of whether a party is represented or if participation directions are sought.

Under sections 65 and 66 of the Domestic Abuse Act, the court will appoint a qualified legal representative (QLR) to cross-examine relevant witnesses if parties:

do not have their own legal representative
are prohibited by the court from cross-examining, due to allegations of domestic abuse

Lucy Reed KC has blogged about her frustrations with this scheme, noting in March 2023 that the QLR scheme was only introduced for cases issued after 21^st July 2022 and court listing is backed up, very few eligible cases have reached the finding of fact stage so far. But many more will be coming. And its not at all clear that enough people have signed up to the scheme to enable it to operate effectively. I will say no more, because I am not touching it with a bargepole. The removal of legal aid for private law family cases will risk the collapse of many hearings; where there will be no QLR and guidance for Judges is that they may not cross examine – which must be right.

Re-visiting a decision not to have a fact-finding hearing

The court must, at all stages in the proceedings, consider whether domestic abuse is raised as an issue: FPR PD 12J [5]. However, guard against attempts to re-argue the question once a decision has been made. What is said to have changed to undermine the original analysis? Proceedings should have judicial continuity, wherever possible, and a consistent approach.

If ‘new’ evidence relating to past events is presented, ask why it was not available or disclosed before. If no good reason is advanced, then you may refuse to admit it. The more significant the evidence is said to be, the more compelling the explanation needs to be for its late receipt.

Case Law – when it goes wrong.

B v P [2022] EWFC B18 (31 March 2022)

Parents made cross allegations against each other. The district judge found most of the mother’s allegations not proved, and the mother appealed.

The district judge was not referred to the need for a ground rules hearing, Part 3A of the FPR, practice directions 3AA or 12J; she was not referred to the definition of domestic abuse and she was not reminded of the decision in Re H-N.

At para 40 of the appeal judgment it is noted:

The judge does not set out a history of the relationship or a chronology of the events relied upon. She sets out each of the allegations made by either of the parents and considers whether it is proved or not proved. It appears to me that she did not follow the approach endorsed in Re H-N, of stepping back from the precise allegations and considering the behaviour as a whole. She did not rule on whether the father’s behaviour was coercive or controlling.

The judge also got some of the facts wrong – for example, finding that the respondent had not entered the appellant’s bedroom, when in both his oral and written evidence he admitted that he had, in order to gather up her clothes and throw them outside.

The court expressed sympathy for the district judge, who had to deal with a remote hearing, a litigant in person and an interpreter but regardless, the findings could not stand.

K v K [2022] EWCA Civ 468 (08 April 2022)

This case re-emphasised the general Re H-N guidance and provided a fresh emphasis on methods of ‘non-court’ dispute resolution and when they should be considered.

Briefly, the father submitted that the district judge had not considered his case that the mother had alienated the children and the findings made of rape, coercive and controlling behaviour and physical abuse of the children are unsound. The mother argued that there was a high threshold needed to over turn findings of fact, and it had not been reached in this case.

The Court of Appeal found that there had not been proper consideration of the need for a finding of fact, and the findings made were unsafe. The case would therefore be sent back to a circuit judge to decide if a fresh finding of fact is needed, following the guidance set out in Re H-N. In brief:

The parties had not taken advantage of a MIAM – Mediation Intake and Assessment Meeting and this might have resolved logistical issues about the father’s contact. The mother had initially agreed to unsupervised contact and had not seen the allegation of rape or generalised controlling behaviour as central to the resolution of the issues between them. .
Any judge considering a finding of fact must identify at an early stage the real issues in the case, as relate to the welfare of the child. A finding of fact is only necessary if the alleged abuse is relevant to what the court is being asked to decide relating to the children’s welfare.
The finding of rape was unsafe as the Judge did not consider all the available evidence, including the mother’s untrue assertion that she had reported this to the family doctor.

The key quote can be found at para 65:

A fact-finding hearing is not free-standing litigation. It always takes place within proceedings to protect a child from abuse or regarding the child’s future welfare. It is not to be allowed to become an opportunity for the parties to air their grievances. Nor is it a chance for parents to seek the court’s validation of their perception of what went wrong in their relationship. If fact-finding is to be justified in the first place or continued thereafter, the court must be able to identify how any alleged abusive behaviour is, or may be, relevant to the determination of the issues between the parties as to the future arrangements for the children.

So where next?

The family justice system puts proof of facts at its heart. An allegation which is not proved and which is not admitted is not a fact. I think there is a real risk to the fairness and integrity of court proceedings if a presumption is made at any stage that one party is more likely to be telling the truth.

In May 2023 the Ministry of Justice produced its implementation plan – a progress report of what’s happened since the Harm Report. Of particular note is the Domestic Abuse Act, automatic eligibility for special measures, right to be supported in court by an IDVA, the pilot scheme in courts in Devon and North Wales launched in February 2022. The November 2020 review of the presumption of parental involvement remains ongoing!

But the language of this report is interesting. It speaks only of ‘victims’ and ‘perpetrators’ – no room for ‘alleged’ or ‘assertions’. This speaks very much to the FJS as ‘tool of misogynistic oppression’ and I do not think this is helpful.

There remains considerable dissatisfaction from campaigning groups. Women’s Aid issued a statement in May 2023 about its view of progress since the Harm Report

Almost three years on from the Harm Panel report, we have not seen evidence of ‘cultural changes’ to improve safety for women and children experiencing abuse. This was a landmark report and we had high hopes for the change which was promised – but we continue to hear day in, day out from survivors that they are still experiencing disbelief, danger and trauma within the family courts.

….. We remain unclear what ‘compulsory’ training on domestic abuse for judges includes, and in our experience women who allege domestic abuse continue to face discrimination and victim-blaming attitudes when trying to secure safe child contact arrangements for their children.

“We urge the government, judiciary and family court professionals to work together with specialist domestic abuse organisations and survivors to deliver the system wide reform which is still so desperately needed to ensure children are put first in the family courts.”

The tensions will of course always remain between those who see cases primarily through the eyes of a ‘victim’ who ought not to have to prove herself and be re-traumatised and those who must apply and obey fundamental legal principles in articles 8 and 6 of the ECHR. The likely collapse of the QLR scheme does not bode well for anyone.

But all we can do is try and manage those tensions as best we can and in the framework set by law. And resist unilateral attempts by single issue campaigning groups to influence law and policy.

Summary of the law to be applied in a finding of fact about suspected injury to a child

Burden and standard of proof

The burden of proof lies with the local authority. The inherent probability or improbability of an event remains a matter to be taken into account when weighing probabilities and deciding whether, on balance, the event occurred (Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35 at paragraph 15]. There is no room for a finding by the court that something might have happened. The court may decide that it did or that it did not happen [Re B at paragraph 2]. The standard of proof does not shift according to the seriousness of the allegation, nor the inherent probability or improbability of an event occurring. See Baroness Hale in Re B (Children)(Fc) [2008] UKHL 35:

The standard of proof is the balance of probabilities (Re B [2008] UKHL 35).

Do not speculate and do not reverse the burden of proof

Findings of fact must be based on evidence. As Munby LJ, as he then was, observed in Re A (A Child) (Fact-finding hearing: Speculation)[2011] EWCA Civ 12:

“It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation.”

Findings of fact must not be based on hypothesis. The Court must avoid speculation, particularly in situations where there is a gap in the evidence. As stated by Munby LJ in Re A (Fact finding hearing: Speculation) [2011] EWCA Civ 12 at (26)

It is for the Local Authority to satisfy the court, on the balance of probabilities, that it has made out its case in relation to disputed facts. The parents have to prove nothing and the court must be careful to ensure that it does not reverse the burden of proof.

Lancashire v R [2013] EWHC 3064 (Fam), ‘there is no pseudo-burden upon a parent to come up with alternative explanations’ [paragraph 8(vi)]. Having heard all the evidence it is open to the court to conclude that the evidence leaves it unsure whether it is more probable than not that the event occurred and accordingly, that party who has the burden of proving that event has occurred has failed to discharge the burden – The Popi M, Rhesa Shipping Co SA v Edmunds, Rhesa Shiping Co SA v Fenton Insurance Co Ltd [1985] 1 WLR 948. The fact that the local authority relies on the lack of a satisfactory explanation for the injuries does not amount to a reversal of the burden of proof – Re M-B (Children) 2015 EWCA Civ 1027, [2015] All ER (D) 135.

Consider all the evidence

When considering cases of suspected child abuse the court must take into account all the evidence and furthermore consider each piece of evidence in the context of all the other evidence. As Dame Elizabeth Butler-Sloss P observed in Re T [2004] EWCA Civ 558, [2004] 2 FLR 838 at 33:

“Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof.”

Reliance on expert evidence

Whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. The roles of the court and the expert are distinct. It is the court that is in the position to weigh up expert evidence against the other evidence (see A County Council & K, D, & L [2005] EWHC 144 (Fam); [2005] 1 FLR 851 per Charles J). Thus there may be cases, if the medical opinion evidence is that there is nothing diagnostic of non-accidental injury, where a judge, having considered all the evidence, reaches the conclusion that is at variance from that reached by the medical experts.

The court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers, where appropriate, to the expertise of others (see observations of King J in Re S[2009] EWHC 2115 Fam)

In Re U (Serious Injury: Standard of Proof): Re B [2004] 2 FLR 263 at paragraph 23. Butler-Sloss P –

The cause of an injury or an episode that cannot be explained scientifically remains equivocal.

Recurrence is not in itself probative.
caution is necessary in any case where the medical experts disagree, one opinion declining to exclude a reasonable possibility of natural cause.
The court must always be on guard against the over-dogmatic expert, the expert whose reputation or amour propre is at stake, or the expert who has developed a scientific prejudice.’
The judge in care proceedings must never forget that today’s medical certainty may be discarded by the next generation of experts or that scientific research will throw light into corners that are at present dark.’

As observed by Hedley J in Re R (Care Proceedings: Causation)[2011] EWHC 1715 Fam:

“There has to be factored into every case which concerns a disputed aetiology giving rise to significant harm a consideration as to whether the cause is unknown. That affects neither the burden nor the standard of proof. It is simply a factor to be taken into account in deciding whether the causation advanced by the one shouldering the burden of proof is established on the balance of probabilities.”

Evidence of the parents/carers and the impact of lies.

The evidence of the parents and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of them (see Re W and another (Non-accidental injury) [2003] FCR 346).

As observed by Mostyn J in Lancashire County Council v R [2013] EWHC 3064 (Fam) (citing Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403, per Lord Pearce and A County Council v M and F [2011] EWHC 1804 (Fam) [2012] 2 FLR 939 at paras [29] and [30]) ‘The assessment of credibility generally involves wider problems than mere “demeanour” which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. With every day that passes the memory becomes fainter and the imagination becomes more active. The human capacity for honestly believing something which bears no relation to what actuallyhappened is unlimited. Therefore, contemporary documents are always of the utmost importance’.

It is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything (see R v Lucas [1981] QB 720). In Re A-B-C (Children ) [2021] EWCA 451 Macur LJ provided updated guidance on the assessment of credibility.

That a witness’s dishonesty may be irrelevant in determining an issue of fact is commonly acknowledged in judgments, and with respect to the Recorder as we see in her judgment at [40], in formulaic terms:

“that people lie for all sorts of reasons, including shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure and the fact that somebody lies about one thing does not mean it actually did or did not happen and / or that they have lied about everything”.

But this formulation leaves open the question: how and when is a witness’s lack of credibility to be factored into the equation of determining an issue of fact? In my view, the answer is provided by the terms of the entire ‘Lucas’ direction as given, when necessary, in criminal trials.

Chapter 16-3, paragraphs 1 and 2 of the December 2020 Crown Court Compendium, provides a useful legal summary:

“1. A defendant’s lie, whether made before the trial or in the course of evidence or both, may be probative of guilt. A lie is only capable of supporting other evidence against D if the jury are sure that: (1) it is shown, by other evidence in the case, to be a deliberate untruth; i.e. it did not arise from confusion or mistake; (2) it relates to a significant issue; (3) it was not told for a reason advanced by or on behalf of D, or for some other reason arising from the evidence, which does not point to D’s guilt.

The direction should be tailored to the circumstances of the case, but the jury must be directed that only if they are sure that these criteria are satisfied can D’s lie be used as some support for the prosecution case, but that the lie itself cannot prove guilt. …”

56. In Re H-C (Children) [2016] EWCA Civ 136 @ [99], McFarlane LJ, as he then was said: “99 In the Family Court in an appropriate case a judge will not infrequently directly refer to the authority of Lucas in giving a judicial self-direction as to the approach to be taken to an apparent lie. Where the “lie” has a prominent or central relevance to the case such a self-direction is plainly sensible and good practice. 100 … In my view there should be no distinction between the approach taken by the criminal court on the issue of lies to that adopted in the family court. Judges should therefore take care to ensure that they do not rely upon a conclusion

57. To be clear, and as I indicate above, a ‘Lucas direction’ will not be called for in every family case in which a party or intervenor is challenging the factual case alleged against them and, in my opinion, should not be included in the judgment as a tick box exercise. If the issue for the tribunal to decide is whether to believe A or B on the central issue/s, and the evidence is clearly one way then there will be no need to address credibility in general. However, if the tribunal looks to find support for their view, it must caution itself against treating what it finds to be an established propensity to dishonesty as determinative of guilt for the reasons the Recorder gave in [40]. Conversely, an established propensity to honesty will not always equate with the witness’s reliability of recall on a particular issue.

58. That a tribunal’s Lucas self-direction is formulaic, and incomplete is unlikely to determine an appeal, but the danger lies in its potential to distract from the proper application of its principles. In these circumstances, I venture to suggest that it would be good practice when the tribunal is invited to proceed on the basis , or itself determines, that such a direction is called for, to seek Counsel’s submissions to identify: (i) the deliberate lie(s) upon which they seek to rely; (ii) the significant issue to which it/they relate(s), and (iii) on what basis it can be determined that the only explanation for the lie(s) is guilt. The principles of the direction will remain the same, but they must be tailored to the facts and circumstances of the witness before the court.

Pool of perpetrators

When seeking to identify the perpetrators of non-accidental injuries the test of whether a particular person is in the pool of possible perpetrators is whether there is a likelihood or a real possibility that he or she was the perpetrator (see North Yorkshire County Council v SA[2003] 2 FLR 849. In order to make a finding that a particular person was the perpetrator of non-accidental injury the court must be satisfied on a balance of probabilities. It is always desirable, where possible, for the perpetrator of non-accidental injury to be identified both in the public interest and in the interest of the child, although where it is impossible for a judge to find on the balance of probabilities, for example that Parent A rather than Parent B caused the injury, then neither can be excluded from the pool. (see Re D (Children) [2009] 2 FLR 668, Re SB (Children) [2010] 1 FLR 1161)

The further point, made in Re D (Children) 2009 2FLR 668 above and endorsed by the Supreme Court in Re SB (Children) 2010 1FLR 1161 above that, in circumstances where it is impossible for a judge to find on the balance of probabilities that Parent A rather than Parent B caused the injury and neither can be excluded from the pool, that ‘the judge should not strain to do so’ was expressly rejected by the Court of Appeal in Re A (Children) (Pool of Perpetrators) 2022 EWCA Civ (decided on 17 October 22).

In Re A (Children) (Pool of Perpetrators) above, at pr. 34, King LJ says as follows:

‘I suggest, therefore, that in future cases judges should no longer direct themselves on the necessity of avoiding “straining to identify a perpetrator”. The unvarnished test is clear: following a consideration of all the available evidence and applying the simple balance of probabilities, a judge either can, or cannot, identify a perpetrator. If he or she cannot do so, then, in accordance with Re B (2019), he or she should consider whether there is a real possibility that each individual on the list inflicted the injury in question.’

In Re B (Children: Uncertain Perpetrator) [2019] EWCA Civ 575 the correct approach to the concept of the ‘pool of perpetrators’ was reiterated. Jackson LJ says:

48. The concept of the pool of perpetrators should therefore, as was said in Lancashire, encroach only to the minimum extent necessary upon the general principles underpinning s.31(2). Centrally, it does not alter the general rule on the burden of proof. Where there are a number of people who might have caused the harm, it is for the local authority to show that in relation to each of them there is a real possibility that they did. No one can be placed into the pool unless that has been shown. This is why it is always misleading to refer to ‘exclusion from the pool’: see Re S-B at [43]. Approaching matters in that way risks, as Baroness Hale said, reversing the burden of proof.

49. To guard against that risk, I would suggest that a change of language may be helpful. The court should first consider whether there is a ‘list’ of people who had the opportunity to cause the injury. It should then consider whether it can identify the actual perpetrator on the balance of probability and should seek, but not strain, to do so: Re D (Children) [2009] EWCA Civ 472 at [12]. Only if it cannot identify the perpetrator to the civil standard of proof should it go on to ask in respect of those on the list: “Is there a likelihood or real possibility that A or B or C was the perpetrator or a perpetrator of the inflicted injuries?” Only if there is should A or B or C be placed into the ‘pool’.

Finally, when the court is considering failure to protect there must be a connection between the facts found and the risk alleged in the form of evidence that the parents knew or ought to

Can a local authority restrict a child’s use of a mobile phone?

I was recently asked to consider a case involving a 16 year old child in local authority care, following fears of child sexual exploitation. The local authority wanted to apply to the court for permission to put ‘spyware’ on the child’s mobile phone, in order to monitor any conversations the child was having with those who posed a risk of harm. The local authority made an application for permission under the inherent jurisdiction to deprive the child of liberty. The court raised a question mark about the appropriateness of this application – was it really a deprivation of liberty?

The questions raised here have broader applicability to on going tension between ‘paternalism’ (protect the child from his foolish decisions ) or ‘autonomy’ (allow the child the freedom to make decisions). I find it interesting that there is such intense scrutiny of a child’s access to a mobile phone but rather less of a child’s assertion that they have ‘changed sex’ and want access to cross sex hormones. Children aged 16 and over pose particular problems in this debate, but it is one we must keep on having.

The local authority wanted permission to restrict a 16 year old child’s access to the internet via a mobile phone or other device and in particular asked the court to give it permission to remove the phone and monitor the child’s access to the internet by installing ‘spyware’ that would log texts and messages. This was done with aim of protecting the child from further sexual exploitation and it was argued this was proportionate and necessary. The local authority suggested that these restrictions be in place for a relatively short period of time, and they could then be reviewed.

I identified the following questions to the court

Is removal or monitoring of a child’s mobile phone a deprivation of liberty?
If it is, is it lawful? i.e. a proportionate and necessary response in the best interests of the child or does the child have capacity to consent and does consent?
If this isn’t a deprivation of liberty, is it rather a a breach of article 8 ECHR (right to privacy)
If so, is that breach lawful?

If the proposed restrictions are neither a deprivation of liberty nor breach of article 8 ECHR, then the local authority does not require the authorisation of the court to exercise parental responsibility for the child. However, given the child’s age and the nature of the restrictions sought, it was sensible to put this matter before the court.

Use of mobile phones by teenagers in local authority care

A survey from Ofcom in 2014 showed that in the UK, 88% of sixteen-to-twenty-four-year-olds owned a smartphone. It seems unlikely that this percentage has fallen in intervening years. The use of mobile phones with internet access is now commonplace and most teenagers will have and use one. Although there are obvious risks inherent in the use of mobile devices that can connect to the internet, such as making children more vulnerable to sexual exploitation, they can be a very useful tool to allow a child to maintain contact with friends and family.

The Institute for Research and Innovation in Social Services noted

The use of mobile devices and the internet are a normal part of everyday life for children and young people, including those in care.

A balanced view of use of devices and the internet by children and young people in care is to appreciate both opportunities and risks associated with use.

There are a number of factors known to increase the vulnerability of children and young people online. However, in considering vulnerability online, this should be done holistically, taking account of a child or young person’s life in general at a given time, and with awareness of both protective and risk factors.

There is a need for practitioners to move towards a more expansive and child-centred approach with a focus on relationships. This should encompass an appreciation of stepfamily and biological family, and the maintenance of relationships with a wider variety of individuals that reflect the world of the child or young person in care.

As the child is subject to a care order, the local authority ‘shares’ PR with the parents and may override the parents’ wishes if it is ‘necessary’ to safeguard or promote the child’s welfare. The parents in this case did not object to the proposals but the child was refusing to discuss the matter with social workers. However, parents cannot consent to their child’s deprivation of liberty. A child can, if they have capacity, but also that consent may be withdrawn.

For a child under 16 it is submitted that the removal of a mobile device, restriction on its use or monitoring of conversations on it, are likely to be well within the ‘zone of parental control’ and do not require the local authority to seek the court’s permission. The UK Council for Child Internet Safety (UKCCIS) is clear that parental controls on internet usage is accepted and necessary – such as requiring phones to be turned off at school or surrendered during the night.

Some local authorities have set out advice for foster carers around removal/restriction of mobile phones which suggests that certainly for younger children, the local authority as corporate parent does not need to seek the court’s permission to exercise control over a child in care’s mobile phone use. For example, see the guidance from East Riding which considers the removal of a mobile phone as a decision of ‘last resort’

… taken when other measures have failed. This decision should itself be reviewed regularly and the phone returned as soon as possible. Any decision to remove the mobile phone for a long period (more than a few days) should be endorsed by the Safeguarding/LAC/Pathway Team Manager, with confirmation for the reasons in writing to the young person and a copy to the carer.

Not only is removal of a mobile phone considered a serious matter, the older a child gets, the less likely it will be that this is a reasonable exercise of parental responsibility. The House of Lords in Gillick approved the following dictum of Lord Denning MR

… the legal right of a parent to the custody of a child … is a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice.

Once children reach 16, they are held by various statutes as able to make their own decisions across a range of issues. These are set out in the judgment of Lady Hale at para 26 of D (A Child) (Rev2) [2019] UKSC 42 (26 September 2019). For example Section 8(1) of the Family Law Reform Act 1969 provides that the consent of a child of 16 to any surgical, medical or dental treatment “shall be as effective as it would be if he were of full age”.

Therefore, it is important to consider what is the lawful basis for depriving or restricting a 16-year old’s access to a mobile phone or the internet. If this is outside the ‘zone of parental control’ then it is submitted that it is desirable for the local authority to seek authorisation from the court, rather than run a risk of being found to have unlawfully breached either Article 5 or Article 8 of the ECHR.

Article 5 ECHR provides that everyone has a right to liberty and security. Distinguishing between a ‘deprivation’ of liberty and a mere restriction is one of ‘degree or intensity’ and not one of nature or substance. The question whether a person’s liberty is restricted is determined by comparing the extent of that person’s actual freedom with someone of similar age and situation whose freedom is not limited. All children should be subject to restraint upon their freedom to do as they wish, but these restraints necessarily decrease as the children grow.

Many cases involving a deprivation of liberty involve restriction on physical movement, such as refusing to allow a person to leave premises without supervision. Such cases are governed by the three limbed test set out in Storck v Germany (Application No 61603/00) (2005) 43 EHRR 96, para 71, and 74 emphasising physical confinement.

However, deprivation of liberty is not restricted solely to limits set on physical movement. Lord Kerr in Cheshire West described ‘liberty’ as “the state or condition of being free from external constraint”

The Mental Capacity Act (2005) Deprivation of Liberty Code of Practice states that denying social contacts constitutes restraint and therefore is a significant factor as to whether the care and treatment amounts to a deprivation of liberty. The importance of social contact for a child is reflected in article 37 of the UNCRC “…. every child deprived of liberty… shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances.”

In the case of HC (A Minor Deprivation of Liberty) [2018] EWHC 2961 (Fam) the court considered a variety of issues beyond mere physical confinement which had the cumulative effect of depriving a child of his liberty. For example, at para 40 the judge commented on the issues of ‘supervision, support and control’.

Linked to the question of freedom of movement is the question of supervision. A typical 13-year-old will certainly be supervised or controlled in certain formal or dangerous settings. For example, at school, much of the time is supervised to a greater (e.g., in the classroom) or lesser (e.g., during break-time) extent, and a risky sport or activity will generally be conducted under close adult supervision.
However, a typical 13-year-old will also enjoy significant periods of time without any active supervision whatever. In particular, it is intrinsic to the lives of teenagers that they are able to spend ever-increasing periods of time speaking to and interacting with their friends and peers, and without this being subjected to adult scrutiny. Equally, it is very much a part of a teenager’s life that they are able to spend time alone, without the presence of an adult or any other person, whenever they like (and their routine allows).

The Judge considered further the consequences of restricted access to social media and the internet.

Most 13-year-olds have access to social media and the internet. For many, this represents a very significant element of their burgeoning independence, sense of self and social life. Of course, for most, the use of social media is important because of and to the extent of that young person having both an immediate network of friends and possibly a secondary network of online acquaintances or ‘followers’ using any particular medium or platform.
To a greater or lesser degree, most 13-year-olds will be subjected at least to parental attempts to monitor and to restrict their use of social media and the internet. Close and constant monitoring of all use would, in my view, be unusual

Conclusions

This child was 16 years old and therefore it was highly unlikely a court would agree that it was within the ‘zone of parental authority’ to deny her access to her mobile phone for more than a short period of time or to monitor her use of it by way of ‘spyware’. (If a parent is paying for the mobile phone, it is probably lawful to refuse to keep paying for it!) and thus the proposed restrictions may amount to a deprivation of liberty, for which the court’s authorisation must be sought. It not a deprivation of liberty, this could be an unlawful breach of Article 8, but if its neither then the local authority will be reassured that its actions are within the lawful boundaries of its exercise of parental responsibility.

UPDATE 23 November 2022

When this matter came before the court, the Judge did not agree that restrictions on use of mobile phone, or adding ‘spyware’ was a deprivation of liberty (which required the court’s authorisation) but it was a breach of Article 8. However, this breach was lawful as it was necessary and proportionate to protect the health and morals of the child. The Judge did not think the local authority required authorisation from the court as this situation was within their parental responsibility.

I think there is probably room for further argument about all of this, certainly on the deprivation of liberty point but for the time being, local authorities should consider carefully such restrictions, make sure that the reasons for them are articulated and impose restrictions for the shortest time necessary. This will protect against any future assertions of an unlawful breach and possible action under the Human Rights Act 1998.

Parental alienation and the limits of the courts’ jurisdiction.

On 15th July 2022 the Court of Appeal agreed that a decision to refuse to allow the police to interview children,was wrongly decided. The court made an injunction prohibiting the police from interviewing two teenage children A and B without the judge’s express permission, unless they needed to determine if the children were at immediate risk of harm. The police appealed, saying the court did not have the power to make this injunction. The Court of Appeal held that a previous finding that the children were manipulated to make false allegations does not exclude the possibility that the recent allegations are credible, nor did that previous finding absolve the police from its responsibility to consider whether or not to investigate. The court had overreached its powers.

Background

This appeal came about in a very long running private law dispute, with at least four published judgments and a number of experts. Re A and B (Parental Alienation) at [2020] EWHC 3366 (Fam); [2021] EWHC 2601 (Fam); [2021] EWHC 2602 (Fam) and [2021] EWHC 2603 (Fam). The conclusion was that A and B could not remain living with their mother as they would suffer further serious emotional and psychological harm because she had alienated them from their father. The court ordered that A and B live with their father and they moved in November 2020.

Things did not go smoothly at the outset and the children ran away twice. However, then they appeared to be settled and happy in their father’s care until the summer of 2021. The family went on holiday to the USA whereupon B ran away, went to the police and made allegations against his father. The family then returned to the UK. Then on 15th October 2021 the children sent an email to A’s school to say that the father has ‘hit, choked and pushed’ them and that they lived ‘in a constant state of terror’.

The school notified the police who spoke to B, then aged 12 who confirmed the allegations but no injuries were seen. A had already gone to school but left and was reported as missing. The mother’s solicitors informed the father that the children would be seeking separate representation in court and had instructed a solicitor to whom they gave a detailed statement about their father’s abuse. The police and children’s services decided to conduct a joint investigation and went to B’s school. However, by 4.27pm the police were told that the father had been granted an injunction to prevent the interview.

The court order stated that the court was ‘satisfied’ the father had not abused the children and it was later amended to say that the police could speak to the children if they were at immediate risk of harm. The police objected, asserting that the court did not have the power to interfere with the operational decisions of the police to investigate criminal matters. The police made an application on 24th October 2021 to interview the children to assess whether there were allegations that required further criminal investigation. The father resisted. But the police did not seek to set aside the order in light of the court’s concerns about the emotional impact on A and B, instead asked for their application to be adjourned to provide further evidence. The police did not pursue that application.

On 15th December the father attended court ‘ex parte’ – without the attendance of any other party – and Ms Woodall, a therapist working with the children, gave evidence that A told her she had been repeatedly contacted by her mother via third parties and the mother instructed the children to make allegations against the father. The maternal grandparents were also involved. The court was very concerned to hear this and considered the children at ‘exceptional risk of significant harm’, reciting in the order that the mother should not be told in advance of a hearing listed in January 2022 and nor should the children attend school until after the hearing.

At the January hearing the court considered the existing police application to interview the children and ordered that the police should consider the report of Karen Woodall and then seek permission to withdraw its application. The police did not withdraw and the matter came back on 24 March 2022. The judge was clearly hostile to the police involvement, pointing out that other allegations made against the father had been found to be false. He refused the police application on the basis that the police had not taken into account the welfare interests of the children and he was ‘exceedingly’ worried about their well being, noting it was now 5 months since the allegations were made. He commented that the local authority were satisfied the children were safe and well – but it does not appear that the local authority spoke directly to A and B.

The Appeal

The police appealed on the basis that the judge overreached his otherwise extensive inherent jurisdiction and usurped the common law and/or statutory duties of the police in the detection, prevention, and prosecution of crime. The Court of Appeal were very unhappy with the ‘wholesale lack of discipline’ that then followed in preparing for the appeal to be heard and noted the ‘partisan slant’ of the mother’s skeleton argument which should not be ‘a vehicle for the pursuit of a partisan agenda in relation to other matters’. The father’s skeleton argument was not served until the morning of the hearing and did not deal with the issues at hand. Nor had there been original compliance with procedure when seeking the ex parte injunction – it seems the judge was not referred to the Practice Guidance (Family Courts: Without Notice Orders) [2017] 1 WLR 478. The police did not cite relevant authorities in October, to point out how ‘vanishingly rare’ are the circumstances in which a High Court Judge could make a prohibitory order against a public authority exercising statutory powers.

Analysis

The Court of Appeal agreed that in theory, the High Court has retained a parens patriae jurisdiction to prohibit a police officer from questioning the children. But exercise of that theoretical power must be seen in the light of a ‘considerable body of jurisprudence which has endured more than 40 years, conveniently summarised by Sir James Munby, President in A Ward of Court [2017] EWHC 1022 (Fam).’

The starting point are the words of Lord Scarman In re W (A Minor) (Wardship: Jurisdiction) [1985] AC 791 at p 797:

“The High Court cannot exercise its powers, however wide they may be, so as to intervene on the merits in an area of concern entrusted by Parliament to another public authority. It matters not that the chosen public authority is one which acts administratively whereas the court, if seized by the same matter, would act judicially. If Parliament in an area of concern defined by statute (the area in this case being the care of children in need or trouble) prefers power to be exercised administratively instead of judicially, so be it. The courts must be careful in that area to avoid assuming a supervisory role or reviewing power over the merits of decisions taken administratively by the selected public authority.”

The Court of Appeal noted that the facts as found by the family court may be influential but do not bind another public body from exercising a power based on “altogether different considerations.” (See R v Secretary of State for Home Department ex parte T [1995] 1 FLR 292.)

The Court of Appeal stated

Whether it was fair to categorise the MPS as taking “no account” of the welfare best interests of A and B is not the subject of this appeal, but the judge’s subsequent comparison of “welfare best interests” as against “simply the broad duty upon the police to investigate crime…”(emphasis provided) is suggestive that the judge had lost sight of the “altogether different considerations” which fall within the remit of other public bodies. As it is, I find the order of 15 October 2021, (as amended), impermissibly interferes with an operational decision made by the MPS regarding the scope and manner of the criminal investigation to be conducted into the circumstances of the case.

A previous finding that the children were manipulated to make false allegations does not exclude the possibility that the recent allegations are credible, nor did that previous finding absolve the police from its responsibility to consider whether or not to investigate.

Comment

An article by Hannah Summers gives some more background detail

EXCL:1/The Met Police have won an appeal after a judge made an order blocking them from interviewing two children who made allegations of abuse against their father.They are the subject of long and complex litigation involving 'parental alienation' claims. https://t.co/9zcDI51tyW
— Hannah Summers (@hansummers) July 17, 2022

Ms Woodall was not criticised by either court, but the article notes

While the important appeal shines a light on the interplay of powers between the Family Division’s emphasis on child welfare and the statutory duties of public bodies, the wider case also raises questions as to the extent and use of court appointed psychological experts in cases where allegations of “parental alienation” are raised.

In documents submitted to the court for the 28 June hearing the Met’s advocates highlighted the role of Woodall, writing: “The concern is as to the appearance or otherwise of her independence and that too much emphasis has been given … to the report and opinions of Ms Woodall in respect of the police speaking to the children. She is seemingly playing a large role in the Metropolitan police Service being unable to even have a preliminary talk with the children.”

A skeleton argument supporting the appeal from the mother’s legal team outlined her concerns that Woodall’s recommendations are relied on by the court despite her not being registered with the regulatory body the Health and Care Professionals Council.

Of course, this case does not shed any light on whether or not ‘parental alienation’ exists but rather is added to the sadly ever growing pile of cases that highlight the dispute between those who claim to be a victim of it and those who claim that a parent who alleges ‘parental alienation’ is simply seeking to cloak their own abusive behaviour. I suggest that reading the 2020 judgment shows very clearly where the truth lies here. The frustration of the first Judge and his grave concerns for the children are well founded. However, those concerns did cause him to fall into error. The police should have spoken to the children.

And I suggest that public trust and confidence in these type of very difficult cases is not assisted by the continued reliance on experts who are not subject to any external regulation. I have previously written about the need for all such experts to be regulated, if only to give parents a route of complaint. But at this current time, the Family Court System has rejected that need. I think this is a mistake. It simply feeds into the narrative of some that ‘parental alienation’ does not exist or is promoted by charlatans to protect abusive fathers. Whereas those of us who represent mothers and fathers in private law disputes are very clear that parents can and do alienate their children from the other parent and that the consequences of this can be severe and life long. But all of us would benefit from knowing that the experts who opine on such serious cases, have agreed to submit themselves to external regulation. And that we have to carefully weigh the impact on children of being encouraged to speak about allegations that may be false – against the harm done by not allowing their voice to be heard at all.

The Care Review

We have oppressive system that purports to be about child protection – but parents and children are frightened of us #cpchange2016
— CPResource (@C_P_Resource) February 19, 2016

We all know the care system isn’t working. Conference after conference, review after review over the last 20 years tells us so. In 2014 I helped to set up this website, over growing concerns from many lawyers, parents and social workers that the system just wasn’t working. In 2015 I organised the first of three multi disciplinary conferences in 2015, 2016 and 2018 examining why the current child protection system wasn’t fit for purpose.

In February 2016 I attended a conference about more humane social work practice and noted

What kind of society do we want? Is social work about ‘helping’ or ‘fixing’? What’s going wrong, and what can we do about it? The paradox is that we pump enormous amounts of resources into a system that doesn’t seem to be helping – in fact is often terrifying families. There is too much focus on a complex system that ‘investigates’ more than it helps.

A quick review of the posts on this website reveals myriad attempts to analyse and address the problems and suggest solutions since 2015.

In 2015 there was a ‘Solution Finding Conference’ at the Bristol Civil Justice Centre and I attended a conference in Finland to discuss the ‘leap to co-working’ between parents and professionals. I wrote that the system was in ‘continual crisis’.

In 2018 the Family Rights Group published the Care Crisis Review

In February 2020 the Westminster Legal Policy forum keynote seminar

In December 2020 came the report of the Family Justice Board with vague statements of intent such as

…the system needs to be ready to support all vulnerable children and adults who depend upon it, and the greatest need is to ensure that those who need support and safeguarding receive it at the right time. Where appropriate, pre-proceedings work and the extended family network should be used. The priority should be to renew existing good practice within the Public Law Outline and implement a system-wide leadership focus on practice improvement.

In March 2021 we had the President’s Public Law Working Group Report

So what does the latest Review recommend? How likely do I think it is that any recommendations will be implemented or have a positive impact?

The 2022 Review

The final report of the Independent Review of Children’s Social Care was published on 23 May 2022. There is an executive summary and a child friendly version.

There are over 70 recommendations including the creation of around 20 new ‘Regional Care Co-operatives’ or RCCs to run and set up new fostering services and commission services from other sectors. Ultimately the Review would like to see all children’s homes managed by the regional bodies. There is a further recommendation for the abolition of the role of the Independent Reviewing Officer.

The Review describes its remit as

…a once in a generation opportunity to reset children’s social care. What we need is a system that provides intensive help to families in crisis, acts decisively in response to abuse, unlocks the potential of wider family networks to raise children, puts lifelong loving relationships at the heart of the care system and lays the foundations for a good life for those who have been in care. What we have currently is a system increasingly skewed to crisis intervention, with outcomes for children that continue to be unacceptably poor and costs that continue to rise. For these reasons, a radical reset is now unavoidable.

Recommendations are made in ten areas

Helping families
Keeping children safe
Making good use of family networks
Adoption
Transforming care
Listening to children’s voices
Protecting care experienced people from stigma and discrimination
Moving on
Helping the workforce be the best it can be
Making sure the system is focused on children and families

The full report is 278 pages so I am going to comment here on just a few areas and recommendations I think are significant. A primary focus appears to be on recognising and supporting the child’s links to their family and communities. Those contributing to the review expressed the concern – with which I agree -that the system often seems intent on ‘assessing’ rather than helping and parents and children find this confusing and frightening.

There is a recommendation to make ‘care experience’ a protected characteristic in the Equality Act, which seems a good idea. I agree with the following assertion

The disadvantage faced by the care experienced community should be the civil rights issue of our time. Most children in care feel powerless, they are often invisible to society, and face some of the greatest inequalities that exist in England today.

There is a recommendation for a new form of ‘Family Help’ which seems sensible, to replace ‘targeted early help’ or ‘child in need’ work.

The aim of Family Help should be to improve children’s lives by supporting the family unit and strengthening family relationships. This will help children to do well and keep families together, helping them to provide the safe, caring environments that children need.

If concerns escalate, despite the intervention of Family Help an “Expert Child Protection Practitioner” will start to work alongside the Family Help Worker, to provide continuity and to hopefully enable parents to find the process fairer and more understandable.

There is increased focus on maintaining the child’s relationships with wider family. While I agree that the first step should always be to investigate what help the wider family can provide – indeed, this is a statutory requirement, I did find this comment odd

Currently there isn’t enough time spent identifying family members who, with the right support, could either provide full time care, or share care with a child’s parents, whilst the parents work through resolving the problems they’re facing.

That isn’t my experience in court at all – quite the reverse. In all my care cases considerable time is spent on viability assessments of various relatives. It is common for final hearings to be delayed due to the late arrival of a family member. Of course, the Review is looking at how to avoid care proceedings and I assume that this comment is directed at work done prior to the application to court. But my experiences in the court process do show that in the majority of cases where I am instructed, family hep and support is patchy at best – or at worst it was the parents’ experience of growing up within their own abusive families that have left them unable to recognise and implement any template of good parenting. The answer to the current crisis cannot simply be to assume that family ties conquer all. And ‘the right support’ is doing a lot of heavy lifting here. What is this ‘right support’ and how much will it cost?

A system that is ‘relentlessly focused on children and families’ – as the Review wants it to be – will still have to grapple with the fact that some children face the most serious risks of harm from their own families. This problem of ‘two hats’ in the child protection system will remain; helping to support a family while at the same time gathering evidence about why the family isn’t safe. This is a constant and damaging tension and I think needs more explicit recognition than this Review is willing to give.

Why am I cynical?

I have absolutely no doubt that the Review correctly identifies the problems inherent in the vast expense of care proceedings, which usually come far too late to help cement any positive change and that it makes more sense to spend this money on helping families before they get to care proceedings and supporting familial ties of love and affection. I agree with this comment from the Executive Summary

Without a dramatic whole system reset, outcomes for children and families will remain stubbornly poor and by this time next decade there will be approaching 100,000 children in care (up from 80,000 today) and a flawed system will cost over £15 billion per year (up from £10 billion now).1 Together, the changes we recommend will shift these trends and would mean 30,000 more children living safely and thriving with their families by 2032 compared to the current trajectory.

But to get the new systems approach up and running is going to require a considerable initial cash injection and the returns on this investment may not be seen for many years. The State will have to continue providing a framework of legal support for those parents who face the removal of their children.

The Review suggests the Government should invest £2 billion now “to make Family Help a reality for families now and to keep supporting families in the future.” More training is needed for social workers and other professionals. That is broken down

….achieving this whole system reform programme will require £2.6 billion of new spending over four years, comprising £46 million in year one, £987 million in year two, £1.257 billion in year three and £233 million in year four.

The Review recognises the current crisis in foster care by calling for a drive to recruit 9,000 more foster carers. All of these once recruited, will need to be paid.

I am afraid I think that a cash injection of £2 billion is never going to happen. In the next few years we will see another child protection scandal, where a child is killed, and the cries will start up again about useless social workers and their incompetence and how children at risk should just be removed as soon as possible. We get the child protection systems we are prepared to fund and the quality of social workers we are prepared to respect.

The Review suggests that some of this funding will come from “a one-off payment from the following people to cover the cost of changing the care system: the largest private children’s home providers and large independent fostering agencies. This payment will be based on the profit they have made from children’s social care.”

I am ignorant as to how this will work in practice, how such a levy will be organised or profit calculated and how much money all that will cost. I assume legislation will be needed. Handing over child protection to private profit making agencies was not something that happened without the Government’s knowledge -it was done with their full connivance, in the continuing hopeless and naive (corrupt?) view of many politicians that the private sector is necessarily lean and efficient, rather than focused on profit for a few individuals.

Without doubt the Review is correct to focus on making child protection work well – to make the right decisions at the right time about when investigation is necessary, where support would be the best way to keep children safe, and where a child needs to come into care so that they are safe.

But Social Work is at its foundation about relationships. This is explicitly recognised by the Review

This means giving professionals the time and resources they need to build strong, respectful relationships with children and families.

Relationships take time and skill to build. The Family Help Workers and ‘Expert Child Protection Practitioners’ will not work for free. And to do their jobs effectively they will need time to do them. Making rules about when agency workers can be appointed, is not addressing the reasons why so many expensive agency workers are relied upon – because so many social workers are off work, burnt out from stress.

The current massive strain on the existing system, where social workers routinely have to juggle case loads way in excess of recommended safe levels, suggests to me that – and sadly – this review will join all the others that float about the internet in ghostly recrimination of us all. We have all known for decades what is going wrong. But there seems very little political will and certainly no public money to fix it. As ever, I will delighted to be proved wrong.

Book review: Sexy but Psycho

This is a review from a contributor who wishes to remain anonymous. The issue of how female victims of domestic abuse are treated in the family justice system is a controversial one. My experiences as a lawyer in the system over 20 years does not support the narrative that I often hear from others, that women’s experiences of violence and abuse are dismissed or actively turned against them. But what is equally clear is that many disagree with me. I am still not clear how we square this circle. Either I am a victim myself of a misogynistic system and simply cannot see the truth as it is played out – or there is a degree of exaggeration by the system’s critics. Presumably the truth, as ever, lies somewhere in between. I cannot deny the number of women who feel very strongly that something is going very badly wrong; here one women gives her history to explain why. I can’t dismiss something simply because it does not chime with my experience or belief – but it is a matter of continuing curiosity and worry to me, how big the gap can be between mine and other women’s experiences.

Sarah Phillimore

“She’s mental “ is currently being played out both in court and in the media in the Heard versus Depp defamation case. What is happening under the gaze of the world, could have been a case study in Dr Jessica Talyor’s latest book.

Amber Heard has been evaluated by the defendant’s witness to have two personality disorders . This is a common diagnosis in family law cases, where there are allegations of intimate partner violence.

The blurb on Sexy but Psycho proclaims “ Angry , opinionated,mouthy,aggressive,hysterical, mad …. Why are women and girls who report violence against them so likely to be diagnosed with personality disorders ? Why are women and girls pathologised for being angry about oppression and abuse ” Dr Taylor argues ( yes she is angry ) that women are classified by the psychiatric profession as mentally unwell when they in fact are having a normal stress response to trauma. She delves into the historical context, women who did not play the game being labelled as witches or locked up in institutions. Any protesting was seen as further evidence of mental illness. Little girls and grown women it seemed were in the words of the nursery rhyme supposed to be made of “ sugar and spice and all things nice” – woe betide them if they stepped over the line.

The Heard-Depp case proves that this is not just historical, it is happening today. The book includes a chapter titled “ Pathologising women and children in the courtroom” , which starts with the case study of a young mother labeled with emotionally unstable personality disorder and depression after being abused and raped by her partner. He then used the label against her in the courtroom. This may be familiar to many. The woman continued to be labelled for years afterwards as unstable, without the violence she had been a victim of being recorded in her files as well.

I eagerly awaited this book and it did not disappoint. I too, was labelled with a personality disorder by a court appointed psychiatrist after years of intimate partner violence, ignored by the authorities the times I asked for help. I had no previous mental disorders or addictions. The NHS could find nothing to treat when I referred myself to mental health services. My daughters were placed under a care order with my abusive ex partner; his previous offending was ignored. I was told that my condition was not treatable by the court expert in the timescale for the children. It was unbelievably surreal, but sadly, is not unique.

Dr Taylor demonstrates that the system is unwell rather than the women.It is misogynistic, created by men to control women. Despite so-called equal rights it still does so. She sets out a plan to change , starting with psychiatric services pathologising and medicating trauma victims. She wants to remove funding from pharmaceutical companies and instead invest that funding in free trauma treatment. She advocates for training for all professionals dealing with women , to understand why the woman may be presenting as she is, a frightened person rather than an unstable person out for revenge /attention …..

Abuse and findings of fact

But if coercive control involves ‘patterns of behaviour’ – how are those patterns to be discerned?

The case of K v K [2022] EWCA Civ 468 (08 April 2022) re-emphasises the general guidance on the court’s approach to fact- finding hearings in private family proceedings following the Court of Appeal’s decision Re H-N [2021] EWCA Civ 448 (Re H-N). I have written about that decision and its guidance here. It also provides a fresh emphasis on methods of ‘non-court’ dispute resolution and when they should be considered.

The case was about whether or not the findings of fact made by the District Judge should be over turned. On the first appeal, the findings were upheld but the Court of Appeal gave permission for the father to re-argue his grounds. Briefly, the father submitted that the District Judge had not considered his case that the mother had alienated the children and the findings made of rape, coercive and controlling behaviour and physical abuse of the children are unsound. The mother argued that there was a high threshold needed to over turn findings of fact, and it had not been reached in this case.

The Court of Appeal found that there had not been proper consideration of the need for a finding of fact, and the findings made were unsafe. The case would therefore be sent back to a Circuit Judge to decide if a fresh finding of fact is needed, following the guidance set out in Re H-N. In brief:

The parties had not taken advantage of a MIAM – Mediation Intake and Assessment Meeting and this might have resolved logistical issues about the father’s contact. The mother had initially agreed to unsupervised contact and had not seen the allegation of rape or generalised controlling behaviour as central to the resolution of the issues between them. .
Any judge considering a finding of fact must identify at an early stage the real issues in the case, as relate to the welfare of the child. A finding of fact is only necessary if the alleged abuse is relevant to what the court is being asked to decide relating to the children’s welfare.
The finding of rape was unsafe as the Judge did not consider all the available evidence, including the mother’s untrue assertion that she had reported this to the family doctor.

Non- court dispute resolution

The Court of Appeal examined the various ways of reaching resolution in a case where the the initial difficulties between the parties appeared to be ‘entirely logistical’ rather than an objection to contact with the father in principle. These needed to be considered at the FHDRA – the First Hearing and Dispute Resolution Appointment which has as its ‘essential purpose’ an opportunity for judicially led dispute resolution. The Court of Appeal were concerned that the father avoided the MIAM simply by stating the case was urgent. Such assertions should have been checked at or before the FHDRA under rule 3.10(1) FPR. See further Practice Direction 12B.

As well as attendance at a MIAM the court noted the Family Mediation Voucher Scheme; eligible parties can apply for a voucher during the MIAM process and receive up to £500 towards the costs of mediation. The Court of Appeal said at para 36:

We would urge all parties to private law proceedings to make use of this valuable resource. This case provides an example of a situation in which mediation would have been particularly appropriate, because there was at the start, no issue between the parents as to whether unsupervised contact was appropriate.

What issues of child welfare are relevant to the finding of fact?

The Judge has to consider this question carefully. The Court of Appeal relied on the ‘key guidance’ from Re H-N, including para 139:

Domestic abuse is often rightly described as pernicious. In recent years, the greatly improved understanding both of the various forms of abuse, and also of the devastating impact it has upon the victims and any children of the family, described in the main section of this judgment, have been most significant and positive developments. The modern approach and understanding is reflected in the ‘General principles’ section of PD12J(4). As discussed at paragraphs 36–41 above that does not, however, mean that in every case where there is an allegation of, even very serious, domestic abuse it will be either appropriate or necessary for there to be a finding of fact hearing, so much is clear from the detailed guidance set out in paragraphs 16–20 of PD12J and, in particular, at paragraph 17.

It is clear that a decision to hold a fact-finding hearing is a ‘major judicial determination’ – it will inevitably introduce delay and increase the negative impact on the parents’ on going relationship and ability to co-operate with each other as parents. The District Judge had made a ‘premature’ decision to hold a finding of fact and he should have first identified the issues between the parents as to the children’s welfare and given the mother time to decide what factual findings she wanted the court to decide, always bearing closely in mind that she was not seeking to prevent contact between the children and their father.

The Court of Appeal were crystal clear at para 65

A fact-finding hearing is not free-standing litigation. It always takes place within proceedings to protect a child from abuse or regarding the child’s future welfare. It is not to be allowed to become an opportunity for the parties to air their grievances. Nor is it a chance for parents to seek the court’s validation of their perception of what went wrong in their relationship. If fact-finding is to be justified in the first place or continued thereafter, the court must be able to identify how any alleged abusive behaviour is, or may be, relevant to the determination of the issues between the parties as to the future arrangements for the children.

The Court of Appeal were concerned that the guidance in Re H-N at para 53 may have been misunderstood. This warned judges against a failure to properly consider issues of coercive control as this might make their judgments vulnerable to appeal. But that requirement to consider the overarching issue of coercive of controlling behaviour was when it was necessary to determine a dispute relating to a child’s welfare. It is not a requirement for the court to determine every single subsidiary factual allegation that may also be raised.

Concluding remarks

This is a useful reminder of the need to consider the justification for finding of fact hearings, given their inevitable negative impact on both the speed of resolution of a conflict and the further polarisation of the parties in adversarial proceedings. It’s also clear to see the focus on ‘non-court’ dispute resolution, which was the focus of the recent Family Justice Council conference.

However, one thing I do not understand. Coercive and controlling behaviour involves a ‘pattern’ of behaviour. Judges are criticised for focusing too much on individual events rather than stepping back and asking what is the prevailing ‘weather’ of this relationship. But how do we discern a pattern if we do not identify its individual elements? Surely no finding of overall coercive and controlling behaviour can be made without findings as to individual events? This case is of limited use in helping me square this circle, as it was an appeal from a decision which had been made without the benefit of the judgment in Re H-N and the Judge could not be criticised for that. What we need now is an appeal from a decision which has tried very hard to stick with the Re H-N guidance.

Background

The judgment of the Court of Appeal

The Good

The bad

Conclusions

Back to Basics – what was the Cleveland Inquiry?

The legacy of Cleveland

Conclusions

Further reading

The facts

The law

Comment

Some historical context

Summary of May 2022 Guidance from Lady Justice Macur for Judges and magistrates.

Is a fact-finding hearing required?

Case Law – when it goes wrong.

B v P [2022] EWFC B18 (31 March 2022)

So where next?

Further reading

Further reading

Conclusions

Further reading

Further reading

Comment

Further reading

The 2022 Review

Why am I cynical?

Further reading

Non- court dispute resolution

What issues of child welfare are relevant to the finding of fact?

Concluding remarks

Further Reading