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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.

Further reading

More general discussion of depriving children of their liberty and secure accommodation https://childprotectionresource.online/depriving-children-of-their-liberty/

NSPCC Guidance Keeping children safe on line

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

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 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.

Further reading

Commentary from Article 39 – which sounds a note of caution

“There are thousands of children in care who are living in unregulated properties where there aren’t any carers or consistent adult supervision. Children are being sent hundreds of miles away from their communities to Scotland, and the family courts are inundated with stories of desperately vulnerable children and local authorities who have nowhere for them to go. Children who arrive in the UK on flimsy boats, without parents or carers, are being put by the Home Office into hotels because the care system has been closed to them. In every part of England, our communities have adults in them still struggling to come to terms with childhoods where they didn’t feel loved or that they mattered, and a care system which left them to fend for themselves at the earliest opportunity. The care system, like many other collective endeavours in our country, has been undermined and starved of public funds.

“Against this backdrop, it is heart-sinking that the care review’s principal recommendations are for major structural reorganisation, which will, for years, consume many millions of pounds and the hearts and minds of people who could instead be leading cultural change to put children and their rights at the heart of everything. It is depressing that, yet again, there are proposals to take away legal protections from children, and that the promise of strengthened advocacy services, which exist to make sure children are always heard and their rights defended, has been tied to the loss of other independent roles.

“The review is rightly passionate about the need for fundamental change, and sets out a powerful case for it. There are individual proposals within the review’s report which have the potential to make life hugely better for children in care, particularly for those children whose families can be properly supported to look after them well. But this will be a review remembered for the structural reorganisation of children’s social care, moving people, services, power and funding away from local authorities. At any time, this kind of major structural upheaval would be questionable. When there are children in the care of the state who are living in hotels, bedsits and caravans, it could be an unforgivable distraction.”

Statement from the Children’s Society

Statement from Pause

Patrick Butler in the Guardian

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.

Further Reading

Guidance to Judges and Magistrates on holding fact finding hearings in private law cases, May 2022

Cases involving Domestic Abuse – how should the court handle this?

This is the text of a presentation given at the Bristol Civil Justice Centre on 19th January 2022, considering how the Court of Appeal’s guidance in Re H-N has been working out ‘on the ground’ We are left with the distinct impression that its not possible to resolve the tension between two competing principles – undertake a sensitive and detailed analysis of patterns of behaviour in a relationship AND take up less of the court’s time. But the need for early and robust findings of fact is clear.

We first met to discuss this in May 2021 and we thought it would be helpful to meet again to see how the guidance was working on the ground. I am going to remind you of the Court of Appeal guidance and consider how it was applied in the case of A Child (Application of PD12J : No.2 – Findings of Fact) [2022] EWFC 2 (12 January 2022)

Re H-N and Others (children) (domestic abuse: finding of fact hearings)

Neutral Citation Number: [2021] EWCA Civ 448

In March 2021 the Court of Appeal handed down its judgment in four conjoined appeals. A number of intervenors were involved, including the Association of Lawyers for Children and Families Need Fathers. The Court of Appeal was clear that PD12J was ‘fit for purpose’ – the issue was how it was being implemented in proceedings. 

The first 77 paragraphs deal with some general guidance. The fundamental issue was, where domestic abuse is alleged in children cases, should the focus be on patterns of behaviour rather than specific incidents?

Summary of guidance

The Court of Appeal will expect to see recognition of the following issues in cases involving allegations of domestic abuse. 

Do we need a finding of fact hearing?

  • At the earliest stage, consider the detailed guidance in PD12J about the need for a finding of fact. 
  • Remember that PD12J is focused on child arrangement orders – it does not establish a free-standing jurisdiction to determine domestic abuse allegations that are not relevant to child welfare issues.
  • Fact finding hearings are to provide a factual basis for assessments or orders/interventions
  • Only allegations that are necessary for assessment purposes or particular orders should be considered
  • Does the fact finding need to be a separate hearing, or can it be bundled up with the final hearing?

CAFCASS made the very sensible suggestion that it would help to have more input from their officers at an earlier stage to help answer these questions and the Court of Appeal agreed this was a good idea worthy of more consideration – I am not sure how this is playing out on the ground. 

Awareness of ‘patterns of behaviour’ means we have to consider the limitations of a Scott Schedule as a means of pleading a case

  • In every case where domestic abuse is alleged, both parents should be asked to describe in short terms (either in a written statement or orally at a preliminary hearing) the overall experience of being in a relationship with each other 
  • Where one or both parents assert that a pattern of coercive and/or controlling behaviour existed, and a fact-finding is necessary, that assertion should be the primary issue for determination at the fact- finding hearing. 
  • Any other, more specific, factual allegations should be selected for trial because of their potential probative relevance to the alleged pattern of behaviour, and not otherwise, unless any particular factual allegation is so serious that it justifies determination irrespective of any alleged pattern of coercive and/or controlling behaviour (a likely example being an allegation of rape). 

BUT how do we square the circle between increased focus on pattens of behaviour and a need to save court time and scarce resources? 

In essence, decisions about fact findings must be made at an early stage and any interim arrangements for contact must be safe for the child. The key words are ‘proportionality’ and ‘necessity’. We have to keep in mind the ‘overriding objective’ to deal with cases efficiently and recognise that resources are finite and need to be allocated to other cases than just our own. 

As the President’s Guidance ‘The Road Ahead’ (June 2020) set out:

‘if the Family Court is to have any chance of delivering on the needs of children or adults who need protection from abuse, or of their families for a timely determination of applications, there will need to be a very radical reduction in the amount of time that the court affords to each hearing. Parties appearing before the court should expect the issues to be limited only to those which it is necessary to determine to dispose of the case, and for oral evidence or oral submissions to be cut down only to that which it is necessary for the court to hear.’

But the Court of Appeal at para 54 were alert to the immediate tension that exists, between dealing with matters efficiently and doing justice to allegations of ‘patterns of behaviour’. I have certainly never experienced two week finding of fact in a private law case – I consider myself very lucky if I can get a day within a reasonable timescale. 

In promoting the need for courts to prioritise consideration of whether a pattern of coercive and/or controlling behaviour is established over and above the determination of any specific factual allegations, there is the potential that this additional layer of evaluation may add to an already lengthy forensic evaluative process. By example, the fact-finding hearing that had been listed in Re B-B (one of the four appeal cases before the court) was planned to last five days (that is 25 court hours) in order to consider five factual allegations.

How to meet the need to evaluate the existence, or otherwise, of a pattern of coercive and/or controlling behaviour without significantly increasing the scale and length of private law proceedings is therefore a most important, and not altogether straight- forward, question. 

A number of suggestions were made by the parties in submissions including; 

  • a ‘threshold’ type document, similar to that used in public law proceedings,
  •  formal pleadings by way of particulars of claim as seen in civil proceedings and 
  • a narrative statement in prescribed form. 

A recent case is a useful illustration of the difficulties of trying to ‘square the circle’ 

A Child (Application of PD12J) [2021] EWFC B59 (6 October 2021) sets out the tension so often apparent in private law cases – either one party is a victim of domestic abuse, including sexual abuse and controlling and coercive behaviour, with the children being exposed to this abuse or one party has laid a trail of false and/or exaggerated allegations to justify removal of the children from their family home or refusal to permit contact with the other party. 

On 30th September 2021 HHJ Dancey gave permission to appeal to the mother of three children, aged 10, 8 and 5 from an order made by a district judge three days earlier that she return the children from the North of England to Dorset and for shared time with their father.  In default of return the district judge had made a transfer of ‘residence’ order. The mother alleged significant abusive behaviour from the father, including that he had lied about being HIV positive and had repeatedly raped her. 

One ground of appeal was that the judge failed to address PD12J at any point in his judgment and failed therefore to consider the harm the mother and/or the children would suffer if he made the orders sought, the level of supervision required, the risk to the children and the impact domestic abuse could have on their emotional well-being and the safety of the mother. He treated it effectively as a summary return in a relocation case. 

The Judge found the district judge was entitled to take a critical view of the mother’s position and weigh that in the balance. He was also entitled to expect a rational explanation for a move of such distance and to consider the proportionality of the mother’s decision-making.   But he was not entitled to dismiss the mother’s allegations summarily, ignore CAFCASS recommendations and fail to properly consider PD12J. 

It’s worth reading the submissions in full as they set out the huge difficulties of these kind of cases. 

Judge commented at para 120 

The acutely difficult question the present appeal poses is the balance to be struck by the court between (a) the potential harm identified by PD12J of making orders that may place children at risk of the consequences of domestic abuse and (b) the emotional harm and potential relationship damage that may be caused by unilateral removal a considerable distance away from the family home and cessation of contact.  

These are decisions that have to be made on an urgent basis, often with limited and untested information.    Get it wrong and the court risks placing children at risk of harm either way.   This is a welfare analysis that requires caution, balance and proportionality – often not easy to achieve at an interim stage.

Para 122 he endorses the framework of analysis proposed by Peter Jackson LJ in the different context of public law care and placement orders in Re F (A Child) (Placement Order: Proportionality) [2018] EWCA Civ 2761 :

a)         What is the type of harm that might arise (for present purposes, putting the mother’s case at its highest)?   

b)        What is the likelihood of it arising?

c)         What would be the consequences in terms of severity of harm if it happened?

d)        Can the risks of harm happening be reduced or mitigated so that they are manageable (including in this case by the making of protective measures)?

e)         What does a comparative evaluation of the advantages and disadvantages of each option (here, return or not, contact or not) say about the best interests of the children, having regard also to the need to protect a parent vulnerable to abuse?

f)         Is the outcome proposed proportionate?

At para 124 the judge comments that the court is not bound to simply accept whatever a party says without some kind of critical analysis but at an interim stage is required to consider the circumstances around the allegations, including:

a)             the seriousness of the allegations and the harm that might result;

b)             whether there is already evidence from other sources which supports or undermines the allegations;

c)             the consistency or otherwise of the allegations (making allowance for the fact that it is in the nature of domestic abuse that accounts are often given piecemeal and incrementally, especially in relation to allegations of sexual abuse which may be delayed because of embarrassment, shame or simply thinking ‘I won’t be believed’);

d)             possible motivations for making allegations;

e)             how the children are presenting and what they are saying.

His last comment at para 139 is interesting 

I should add that the current practice, driven by resource demands, of Cafcass not interviewing both parents for the purpose of preparation of the safeguarding letter has contributed to the sense that the Cafcass recommendations were based solely on what the mother told them. At the moment Cafcass are leaving it until the FHDRA before speaking to the parties at court.   I am concerned that interviewing parents in this pressured environment rather than independently away from court risks safety issues being missed.  In this case of course the hearings were on non-Cafcass days and there was no opportunity to speak to both parents even at court.   The father was not spoken to by Cafcass at all until after the decision under appeal.  

The finding of fact was then heard in December, court reminding itself that Section 63 of the Domestic Abuse Act 2021, which came into force on 1 October 2021, requires amendment of the Family Procedure Rules to ensure that, where a person is, or is at risk of being, a victim of domestic abuse carried out by another party, or relative of another party or witness, it is to be assumed that the quality of their evidence and, where they are a party, their participation in the proceedings, are likely to be diminished by reason of vulnerability.

The following special measures were therefore put in place

a) separate waiting areas were arranged for the mother;

b) in court the father was screened from sight by the mother and arrangements were made when going in and out of court and during adjournments to ensure she would not see the father;

c) the mother was screened from the father while giving her evidence from the witness box;

d) breaks were taken during the mother’s evidence which spanned the afternoon of the first day of the hearing and the morning of the second and took some 5 hours;

e) additional opportunities for breaks were offered to the mother at points when she appeared to find questions about intimate matters particularly difficult, although in fact the mother opted to carry on;

f) given that there were some long pauses before the mother was able to answer some questions, I ensured that adequate time was given to the mother to answer questions fully before moving on to the next.

The difficulty for the court was that one of the parties had to be lying. Their starkly different accounts could not be resolved. The Judge was clearly alive to the difficulties In assessing the evidence of victims of trauma – at para 180 he said

This has been a troubling and difficult case. Experience shows that victims of domestic abuse, who are by definition vulnerable witnesses, sometimes find it difficult to talk about intimate and highly personal information, particularly allegations of sexual abuse. Because victims live in a state of fear, with patterns of abusively controlling behaviour, it is not uncommon for dates and incidents to become confused. Lived experiences are revealed over sometimes lengthy periods, including during court proceedings and, in my recent experience, in the course of giving evidence. Sometimes this iterative process is a matter of victims gaining the independence and courage to talk about their experience. Sometimes something is said which triggers a victim to be able to speak.

However on a careful analysis of the evidence he found that the mother had fabricated allegations against the father to justify her departure from an unhappy marriage. Although the father’s failure to disclose his HIV status was ‘abhorrent and abusive’ it did not create a risk to mother or children and therefore was not a matter to be relied upon to restrict contact. 

What this case clearly underscores is the need for careful analysis of all the factors set out in PD12J at an interim stage, followed by swift and robust findings of fact. The only way to do this is I am afraid by taking up court time. I can’t see any other way to square the circle. 

Further reading

Another useful example of how to apply the Court of Appeal guidance B-B, Re (Domestic Abuse: Fact-Finding) (Rev1) [2022] EWHC 108 (Fam) (20 January 2022) – in this case the father was found to have behaved abusively.

‘The Shake’

On Thursday 4th November 2021 at 7 p.m. we will be presenting by Microsoft Teams a play about a young baby who gets shaken and badly injured whilst in the care of her parents. The family portrayed in the play are involved in care proceedings. The play shows the social circumstances, so frequently encountered in criminal and Family proceedings, which lead to this sort of injury.

The play is graphic, and some may find it distressing. It lasts for about 40 minutes. We show it as an acted play-reading. It has been written be HHJ Wildblood QC. There is no charge for attendance.

After the play, there will be a short talk by Dr Imelda Bennett, Consultant Paediatrician explaining the nature of injuries that are often encountered when a baby is shaken. That will be followed by a short talk by DCI Kristina Windsor about the criminal procedures that may arise and the charging options that may need to be considered. Finally, HHJ Wildblood QC will speak about Family Court procedures and the need for communication between the Family and Criminal proceedings. There will be a chance to send in questions using the Team’s ‘chat’ function.

We estimate that the event will last a total of about 1 ½ – 2 hours. The intention is to improve our understanding of how these distressing injuries can occur and the consequences that may arise for everyone involved. Those attending are asked to turn off their microphones and cameras when joining the Teams link.

The Teams link is here. If you have difficulty joining on the night, please email HHJ Wildblood QC on his email address: stephenwildbloodqc@gmail.com

If you are attending, please could you send a brief email to Stephen on the above email address so that we have some idea of numbers.

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Children’s Consent to Medical Transition

The Court of Appeal decision in the Bell v Tavistock case.

This is a post by Sarah Phillimore. I will be discussing these issues at a webinar organised by EBSWA on September 30th. Please join us.

https://m.facebook.com/chegender/photos/a.933845336653629/3805107706194030/?type=3&source=54

Summary

Over recent years, considerable debate has arisen over the consequences of medical intervention which aims to allow ‘gender dysphoric’ children to ‘transition’ from the body into which they were born, to better reflect their perceived ‘gender identity’.  There are serious concerns that this kind of intervention is experimental, with no clear evidence base and carries significant risks for the child.

The debate culminated in 2020 with the challenge of Keira Bell by judicial review, against the lawfulness of the decision by the Tavistock and Portman NHS Foundation Trust (‘the Tavistock’) to agree that she could offer valid consent to medical transition, aged 16. The High Court determined that such cases should be brought to court for a ‘best interests’ decision, emphasising how unlikely it was for children under 16 to be ‘Gillick competent’ and therefore able to offer informed consent to medical transition, by way of puberty blockers and cross sex hormones.

The Tavistock appealed in June 2021 and the judgment was published today, September 17th 2021.

In brief, the Court of Appeal allowed the appeal, considering that the High Court had made findings on controversial and disputed facts, which was not the purpose of a judicial review and which is was not entitled to make. The court noted the real danger in situations involving ethical questions coming before the court on disputed evidence which is not capable of resolution in this arena. The court may attempt “to enunciate propositions of principle without full appreciation of the implications that these will have in practice, throwing into confusion those who feel obliged to attempt to apply those principles in practice.” (para 77). The decision about treatment must be made by the clinicians, child and parents. However, the Court of Appeal sounded a clear note of warning at paras 92 and 93 – clinicians must be aware of their ethical duties when determining a child’s informed consent and failure to do so will carry regulatory or even criminal consequences.

So where do we go from here?

The necessary debate about the implications of medical transition for children – particularly as the huge recent surge in referrals of teenage girls strongly suggests some kind of social contagion rather than pressing medical need – has been gravely hampered by a toxic and polarised atmosphere, whereby legitimate concerns about the welfare of children have been actively rejected as ‘bigotry’ or ‘transphobia’. However, in the run up to the first hearing in Bell and immediately afterwards, consideration of the welfare issues for children began to get more serious exposure.

Current NHS advice with regard to puberty blockers and cross sex hormones states that little is known about the long-term side effects of either treatment. Although some claim that puberty blockers are a physically reversible treatment, the psychological effects are not known. There are concerns about potential impact on the brain  or bones. For boys, ‘pausing’ puberty may mean they do not develop enough penile or scrotal tissue to undergo later construction of a neo-vagina. Cross sex hormones may cause irreversible changes to the body – such as breast growth or deepening of the voice and temporary or permanent sterility. 

The National Institute for Health and Care Excellence (NICE) (see ‘further reading’ below) has concluded that any potential benefits of gender-affirming hormones must be weighed against the largely unknown long-term safety profile of these treatments in children and adolescents with gender dysphoria. Other jurisdictions, such as Sweden, Finland and Australia are also raising concerns about the quality of the available evidence. 

The High Court decision

The High Court held  that in order for a child to be competent to give informed consent to puberty blockers, the child would have to understand, retain and weigh the following information:

  • the immediate consequences of the treatment in physical and psychological terms;
  • the fact that the vast majority of patients taking puberty blocking drugs proceed to taking cross-sex hormones and are, therefore, on a pathway to much greater medical interventions;
  • the relationship between taking cross-sex hormones and subsequent surgery, with the implications of such surgery;
  • the fact that cross-sex hormones may well lead to a loss of fertility;
  • the impact of cross-sex hormones on sexual function;
  • the impact that taking this step on this treatment pathway may have on future and life-long relationships;
  • the unknown physical consequences of taking puberty blocking drugs; and
  • the fact that the evidence base for this treatment is as yet highly uncertain.

The Court considered that it was ‘highly unlikely’ that a child of 13 years or younger could give informed consent (the youngest patient referred to the Tavistock for puberty blockers was aged 10 years) and ‘doubtful’ whether a child aged 14 or 15 could. Clinicians were advised to consider seeking court authorisation before treating any child, but that position was clarified in AB v CD & Ors [2021] EWHC 741 (Fam). If child, their parents and the clinician all agreed that treatment was the best course of action then court authorisation was not required. 

The response of the Court of Appeal

The Court of Appeal, comprised of Lord Burnett of Maldon, Sir Geoffrey Vos and Lady Justice King, handed down its judgment on 17th September 2021.

The judgment begins by making it clear that the only issue before the court was the question of whether or not the sanction of the court was needed before puberty blockers or cross sex hormones were prescribed – not whether the treatment itself was lawful. The claimants argued that those under 18 were not capable in law of giving valid consent.

The court notes at para 5 an ‘odd feature’ of the claim – it was not actually the Tavistock who prescribed puberty blockers. It referred children on to either UCH or Leeds which then independently made its own clinical assessment and obtaining valid consent from the child. Neither hospital trust was joined as a party to these proceedings but intervened as it was their prescribing of puberty blockers that was ‘under attack’. In reality therefore, the claim was a challenge to the NHS policy of providing treatment for gender dysphoric children – the gender identity service at the Tavistock (GIDS) is provided as part of the NHS Standard Contract and commissioned by the NHS Commissioning Board in accordance with a service specification.

The High Court did not find any illegality in the policy or practice of the Tavistock, UCH or Leeds. Nor did it agree that the information given to children was ‘inadequate’ – but did express concern about the ability of children to understand and weigh it [para 150]. The claim for JR was not however dismissed; the High Court went on to declare precisely what was required by ‘informed consent’.

The Tavistock appealed on 8 grounds (para 12)

  • Grounds 1 and 2 – the court misapplied the law in Gillick.
  • Ground 3 – the court’s conclusions were inconsistent with the 1969 Family Law Reform Act.
  • Grounds 4 and 5 challenge the conclusion that prescription of puberty blockers for gender dysphoria is “experimental” and that their effects are “lifelong” and “life-changing”.
  • Grounds 6 and 7 – challenge the court’s reliance on expert evidence adduced by the claimants and relying on it to resolve clinical differences of opinion.
  • Ground 8 – that that the approach of the court discriminates against children with gender dysphoria which cannot be justified

From para 15, the Court of Appeal examined the factual background in more detail. From para 24 it sets out the history of the use of puberty blockers.

How did the High Court deal with the law?

The Court of Appeal examined this from para 39. The High Court had concluded that apart from ‘life saving’ treatment, there could be no more profound intervention in a child’s life and therefore it was appropriate for the court to sanction this type of treatment. But the Court of Appeal responded to remind itself that it should be wary of “becoming too involved in highly complex moral and ethical issues on a generalised, rather than case specific basis.” Neither the service specifications nor the standard operating procedures of the Tavistock were unlawful. The House of Lords in Gillick had been very clear that it was for the clinician to decide if a child under 16 could give informed consent to medical treatment. It was unwise for the courts to attempt to put judicial limits on this – the rights of the patients were better protected by the professional standards of the treating clinicians.

How did the High Court deal with the evidence?

The Court of Appeal were unhappy with how the High Court dealt with disputed evidence.

Even from within the evidence filed on behalf of Tavistock, there is an apparent disconnect between the international experience that 1.6% of children who started puberty blockers did not go on to cross-sex hormones and the figures which arose from the random sample, namely that of 49 referred to the Trusts only 27 were approved for or accessed cross-sex hormones. This is one example of the difficulty in drawing conclusions from statistics which are not fully explained or explored in an evidential context where they were peripheral to the legal dispute before the Divisional Court and where any apparent differences were not capable of being tested forensically.

The Court of Appeal agreed with the stated approach of the High Court that a judicial review was not the correct arena for making findings of fact (para 31) or attempting to choose between disputed expert evidence but considered that despite these statements of intent, the High Court had made some factual determinations. See from para 33:

  • It was unusual for a child to be refused puberty blockers because s/he could not consent; instead ‘more information’ was offered.
  • Once a child started puberty blockers they were on a clear pathway to cross sex hormones
  • This treatment was rightly described as ‘experimental’
  • This treatment may support the persistence of gender dysphoria, which would otherwise have resolved

The Court of Appeal were unhappy that the status of the claimant’s evidence had not been resolved by the High Court- it had been adduced without permission and some of it was ‘argumentative and controversial’. A judicial review is simply not the arena to resolved disputed expert evidence and normally the defendant’s evidence would be taken at face value.

There was further discussion of this from para 61. The High Court found the treatment was ‘experimental’ on the basis that there was ‘real uncertainty over the short and long-term consequences of the treatment with very limited evidence as to its efficacy’ – but the Court of Appeal found it would have been better to avoid those kind of ‘controversial’ findings. The same criticisms were levelled at the finding that the overwhelming majority of children would move from puberty blockers to cross sex hormones. The declaration “turns expressions of judicial opinion into a statement of law itself. In addition, it states facts as law which are both controversial and capable of change” (para 80).

As the Court of Appeal made clear at para 64

The point, however, is that these judicial review proceedings did not provide a forum for the resolution of contested issues of fact, causation and clinical judgement….As will appear from what we say in the next section of this judgment, we have concluded that the declaration implied factual findings that the Divisional Court was not equipped to make.

Was the High Court right to make declarations about the nature of the treatment?

Short answer: No. The Court of Appeal examined this issue from para 66, noting that it was the heart of the appeal: the Tavistock arguing that the court “intruded into the realm of decisions agreed upon by doctors, patients and their parents, where the court had not previously gone.” Nor could the Court of Appeal find any example of declaratory relief being granted in a judicial review where the challenge with regard to the law had failed.

At para 70 the Court of Appeal criticised the High Court’s declarations as attempting an exhaustive list of factual circumstances that must be evaluated in seeking consent from a child. But some of the factors identified beg questions to which different clinicians would give different answers. At para 75 the Court of Appeal said:

The evidence of Tavistock and the Trusts was that the treatment was safe, internationally endorsed, reversible and subject to a rigorous assessment process at each stage. It was supported by the service specification, the WPATH guidelines, the Endrocrine Society Clinical Guidelines and explained in the witness statements of Dr Carmichael and Dr Alvi. As we have seen, and as these proceedings have illuminated, there are strongly held contrary views. The declaration would require the clinicians to suspend or at least to temper their clinical judgement and defer to what amounts to the clinical judgement of the court on which key features should inform an assessment of Gillick competence, influenced by the views of other clinicians who take a different view and in circumstances where Mr Hyam accepts that the service specification, which sets out criteria for referring a child for puberty blockers, is not unlawful. 

Both Lords Scarman and Fraser had in Gillick made detailed observations about what they would expect to see from doctors assessing informed consent. But to have turned these into declarations of law would have been inappropriate (para 81).

Was the High Court right to have given guidance that these matters should come before the court?

Short answer: no. The Court of Appeal noted at para 86 that requiring the decision about this treatment to be sanctioned by the court “placed patients, parents and clinicians in a very difficult position”. The guidance would in practice have the effect of denying treatment as many wouldn’t have the resources to make an application and there would be inevitable delay through court involvement. In addition, where child, parents and clinicians agree treatment is in the best interests of the child, it would be inconsistent with the conclusion of the Supreme Court in An NHS Trust (discussed at [49]) to bring the matter to court.

Having made these decisions, the Court of Appeal did not need to consider the issues around discrimination in the final ground of appeal.

Where next?

I do not doubt that gender dysphoria is a ‘real thing’ and causes great suffering. However, I do very strongly doubt that it is as common as current referal rates or social media activity suggests. The majority of children expressing ‘gender variance’ will not wish to ‘change sex’ if left to go through puberty unmedicated.

The Court of Appeal was clear at para 92 that the pre-Bell landscape has shifted and sounds a warning note for clinicians and their insurers.

We should not finish this judgment without recognising the difficulties and complexities associated with the question of whether children are competent to consent to the prescription of puberty blockers and cross-sex hormones. They raise all the deep issues identified in Gillick, and more. Clinicians will inevitably take great care before recommending treatment to a child and be astute to ensure that the consent obtained from both child and parents is properly informed by the advantages and disadvantages of the proposed course of treatment and in the light of evolving research and understanding of the implications and long-term consequences of such treatment. Great care is needed to ensure that the necessary consents are properly obtained. As Gillick itself made clear, clinicians will be alive to the possibility of regulatory or civil action where, in individual cases, the issue can be tested. 

And at para 93:

But it is for the clinicians to exercise their judgement knowing how important it is that consent is properly obtained according to the particular individual circumstances, as envisaged by Gillick itself, and by reference to developing understanding in this difficult and controversial area. The clinicians are subject to professional regulation and oversight.

Keira Bell’s judicial review has failed but she has performed a great service for not only the welfare of children but also the integrity of the medical and scientific community. The High Court blew the lid off the lack of proper evidence in this field alongside the bizarre cementing of an ‘affirmation path’ which confined children on a route to really serious medical intervention, for the rest of their lives. I hope that the discussion generated by both the High Court and the Court of Appeal will finally bring an end to this dangerous climate of fear, where necessary discussion is shut down as ‘transphobia’.

While I am disappointed that there is little reference by the Court of Appeal to the ancient powers of protection that the court exercises over children I can understand the limitations of the judicial review process and the difficulty of trying to determine disputed and controversial evidence within it. I also hope that the medical profession will undertake their duties to properly assess the informed consent of their child patients, without bowing to pressure from political lobby groups.

The signs are hopeful now of more general willingness and openness to discuss these very important issues. The Cass Review was commissioned in 2020 to carry out an independent review into gender identity services for young people. Its terms of reference focus on the assessment, diagnosis and care of children with gender incongruence and will be wide ranging in scope.

I will await the outcome of the Cass Review with great interest. I hope it is going to show that all patients, but particularly children, need services that are insulated from political ideology. ‘Talking therapies’ must assume a greater importance than simply a model of affirmation. This will no doubt place an even greater strain on the existing specialist facilities for ‘gender diverse’ children but the long term impacts on children are too serious to ignore and we must make investment in our children’s mental health a priority. 

First – Do No Harm.

Online comment

The variety and disparity of the online comment immediately generated, underscores for me the need for Parliament to step in and set clear parameters for the age limits for this treatment.

Transgender Trend response

Andrew Tettenborn, Salisbury Review

Court overturns ‘cruel ruling’ Pink News

Gendered Intelligence blog

Further reading

When can a child consent to medical transition? PDF ‘explainer’ from Transgender Trend and EBSWA

How do children consent? The interplay of Gillick competence and parental responsibility’ CPR Jan 2020

Age at which child can access transgender hormone therapy in Europe 2017 https://fra.europa.eu/en/publication/2017/mapping-minimum-age-requirements/transgender-hormone-therapy

‘First Do No Harm’ May 2019 presentation at the House of Lords https://2d3aa506-25d9-4c0d-b140-7d13f9421f96.filesusr.com/ugd/1b54b4_32788a07d22f4fa59e2cab0dfc6971cf.pdf

For discussion about the research in this area of the efficacy of the current treatment regimes, see Jesse Singal “How Science-Based Medicine Botched Its Coverage Of The Youth Gender Medicine Debate”

https://jessesingal.substack.com/p/how-science-based-medicine-botched

For an examination of the history of the drive to increase children’s access to puberty blockers and cross sex hormones, see Michael Biggs investigation in 2019 ‘The Tavistock’s experiment with puberty blockers’ https://users.ox.ac.uk/~sfos0060/Biggs_ExperimentPubertyBlockers.pdf

Professors Lemma and Savulescu essay in July 2021 in “To be, or not to be? The role of the unconscious in transgender transitioning: identity, autonomy and well-being” https://jme.bmj.com/content/early/2021/07/29/medethics-2021-107397

National Centre for Health and Care Excellence [NICE] evidence review of puberty blockers https://www.evidence.nhs.uk/document?id=2334888&returnUrl=search%3fq%3dtransgender%26s%3dDate

NICE Evidence review of Cross Sex Hormones https://www.evidence.nhs.uk/document?id=2334889&returnUrl=search%3ffrom%3d2021-03-10%26q%3dEvidence%2bReview%26to%3d2021-04-01

Gender Affirming hormone in children and adolescents BMJ 2019 https://blogs.bmj.com/bmjebmspotlight/2019/02/25/gender-affirming-hormone-in-children-and-adolescents-evidence-review/

The decline and fall of science based medicine Andy Lewis July 2021 https://www.quackometer.net/blog/2021/07/the-decline-and-fall-of-science-based-medicine.html

Organisations/Podcasts

Gender: A Wider Lens podcast. Therapists Sasha Ayad and Stella O’Malley openly consider gender, identity, and transition, 

https://www.youtube.com/channel/UCP62aWWtlZV1oVnbMhTRBcg

Transgender Trend https://www.transgendertrend.com/

An organisation of parents, professionals and academics based in the UK who are concerned about the current trend to diagnose children as transgender, including the unprecedented number of teenage girls suddenly self-identifying as ‘trans’ (Rapid Onset Gender Dysphoria or ROGD). See discussion of the teenage brain https://www.transgendertrend.com/teenage-brain/

Evidence Based Social Work Alliance https://www.ebswa.org/

A group of social workers committed to evidence-based practice, a process that involves open discussion and professional curiosity. 

 

When Facts Don’t Matter

This is a post by Sarah Phillimore

Am I a ‘troll’ or a ‘leading professional’? The answer seems to depend on whether or not I am agreeing with someone’s particular narrative at a particular time, rather than on the quality of my arguments and the state of my evidence.

I have been distracted from the child protection system of late by ever increasing terror at the state of the ‘debate’ over issues of sex and gender and our rights to speak about them. But I haven’t strayed too far from this arena. And there are many similarities; here I find exactly the same kind of damaging rejection of facts in pursuit of what appears to be a religious fever that corrupts meaningful discussion. There is the exact same pushing of a precooked and preconceived narrative to achieve a campaigning end – truth, facts and the welfare of children be damned.

So what’s happened now to provoke an irritated blog post? There has been a clear build up over several years now of a campaign to persuade law and policy makers that the family court system is a tool of misogynistic oppression, which is designed to ‘hand over’ children to violent men and punish women who dare allege that they have been abused. The campaigners scored a considerable victory with the Ministry of Justice ‘Harm Report’ in June 2020. I have set out my concerns about this report and its conclusions here; in brief it was argued on the basis of self selected ‘lived experience’ that the ‘pro contact culture’ of the family courts meant that children were not protected from the invariably male domestic abusers.

However, the Court of Appeal put the brakes on with their decision Re H-N and Others (children) (domestic abuse: finding of fact hearings) [2021] EWCA Civ 448 which I wrote about here. Many campaigners appeared to be expecting a wholesale demolition of the family court system and recognition that judges simply couldn’t be trusted to even identify domestic abuse, let alone be aware of case law and practice directions about how to deal with it. But the Court of Appeal 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

But the campaigners weren’t daunted. They came back fighting with a Dispatches documentary ‘Torn Apart’ which aired on July 20th 2021. It’s basic message seemed to be that ‘parental alienation’ wasn’t a real thing, but rather a strategy of vile abusing men to ensure that children were ‘torn apart’ from their loving mothers, at the behest of the criminally incompetent and dysfunctional family court system.

‘Parental alienation’ is a phrase to describe what happens when a child is effectively brainwashed by one parent to refuse contact with the other. It’s a real thing, that sadly men and women do to their children, it causes immense emotional harm and there is a wealth of case law about it. I have written about it here and here if you want to read more. In the minority of really intractable cases the court may order the children to be removed from the alienating parent, either into foster care or to live with the other parent. This is done because the court’s primary duty is to secure the welfare of the child, not to ‘punish’ or ‘reward’ either parent.

If you haven’t seen the documentary, watch and make up your own mind. I will just share a few of the comments I received via email after it aired, from lawyers, psychologists and parent campaigners.

My main complaint is the imbalanced reporting.  Orders for transfer of living arrangements are not common and usually made only at the end of years of litigation, expert and guardian involvement and probably multiple ‘second chances’ for mum (using the example in the documentary).  It was not made clear WHY the Judge had felt a transfer of living arrangements to be in these children’s best interests.

For me it was the failure to acknowledge that PA is actually a real thing.  It is not a gendered issue. Mother’s were represented but not as targeted parents.  Father’s were not represented at all. Grown up children who were alienated as youngsters were not represented.  A balance of expertise was not represented.  It erased the experience of a whole cohort of children, parents and extended families, for whom PA is real, and that was utterly devastating

It’s all very well to use actors in re-enactments, but it was far from clear as to what was real and what was not in this film.  And to use such highly emotive language, tone and even screams with no indication of how much of each is just an artist’s impression rather than an accurate representation of what actually happened. Even mum crying about her babies is unlikely to have been filmed at the time, so the whole thing – and it is the emotional impact that is the issue under consideration – could be entirely misleading.  This is a far cry from a voiceover to maintain anonymity.  Were the kids even real? Surely if they were, this would be breaking the disclosure law? Surely too they could have mocked up dad’s side a little too?  What about giving some indication as to why the judge made the decision in the first place – not exactly a common decision…  This is all way outside any public broadcasting, balanced reporting and truth exposé characteristics previously associated with C4.  Fake news/nudge territory here.  Not even creative!

There was also extensive coverage in newspapers and on social media. I will just highlight one of the articles, written by one of the contributors to Dispatches, a Dr Charlotte Proudman. What makes Proudman’s contribution all the more remarkable is that she is a family law barrister. Yet she felt able to say this, writing in the Guardian on 21st July 2021 under the headline Our family courts are allowing perpetrators to use the bogus idea of ‘parental alienation’ to gain access to their victims.

I have watched, horrified, as parental alienation has become the go-to litigation tactic, often used by domestic abusers to discredit allegations made against them by their ex-partner. Although parental alienation can be raised by either parent, overwhelmingly I see it being deployed as a counter-allegation by fathers when mothers try to prove they or their children have been subjected to abuse.

That may be Proudman’s experience. It certainly isn’t mine, nor that of the many others who have expressed their views via email. I would like to have discussed this with Proudman, but she has blocked my Twitter account, even when she relies on me as a ‘leading professional’ later in the article.

I suspect I am only a ‘leading professional’ because she wishes to cite a letter I wrote to the President of the Family Division about the need to change the rules to prevent unregulated experts from giving evidence in children cases. This is particularly important in cases of parental alienation as often the choices for children are very bleak; leave them to suffer emotional harm or try to remove them and risk a different kind of harm. So its important that we can trust the experts who offer the court their expert opinion. I do not trust any expert who choses not to be subject to external regulation.

I unfairly criticised Proudman for saying the President had refused to consider it; I had hoped that it was simply on the back burner until COVID was over. But she was right, the Family Procedure Rules Committee refused to take action on 8th February 2021 and no one had the courtesy to even let me know. I think this is a mistake and an example of where the family justice system doesn’t help itself. But it does not justify or explain Proudman’s comment that then followed, that this refusal left ‘victims – primarily mothers – and children at risk.’ Unregulated experts are a risk to us all. This isn’t a men versus women situation.

Nor do I accept that the concept of parental alienation is ‘bogus’ or ‘junk science’ as Proudman asserts – I have seen it too often over 20 years.

The article ends in unhelpful hyperbole

The dangerous label of parental alienation is now the single biggest threat to the credibility of victims of domestic abuse, and to the voices of children. It gives validation, power and control to perpetrators. Any court that countenances unevidenced allegations of parental alienation is potentially sanctioning abuse. Sadly, it may take a tragedy before anyone will actually listen.

I suggest that the single biggest threat to the credibility of victims of domestic abuse are the enthusiastic attempts by campaigners like Proudman to remove certain behaviours from scrutiny. Mothers are just as capable of hurting their children as fathers and a failure to recognise this or even actively deny it, promotes giving moral authority to child abusers – something I have argued that the ‘DV Sector’ seem particularly keen to do.

No court should countenance ‘unevidenced’ allegations of parental abuse. Every case where I have dealt with allegations of parental alienation these were anxiously scrutinised over far too many months, leadings to the bitterly ironic situation where the alienation became further entrenched and the harm to the child even greater. Proudman is a barrister. She ought to understand above all the importance and the centrality of evidence in family cases. She ought not to be an enthusiastic proponent of a false narrative that paints the family court system as a frankly insane circus.

There is a great deal wrong with the family court system. It is in crisis. Of that there is no doubt, and I have considered it here, here, and here.

But what it does understand is evidence. Ours is a system which puts ‘proof of facts at its heart’. Children are not ripped from the arms of loving mothers on a whim or to punish them for daring to alleged the father is abusive. The court operates to protect the welfare of the child as its paramount consideration. And often it fails. But this is not because of deliberate misogyny or ignoring evidence. It is for the same dreary, unsexy reasons that many systems fail – because it is the wrong system for the problem at hand. Many family disputes revolve almost entirely around issues which are beyond the court’s reach – the psychological dysfunction of the parents, their emotional pain, their fear, their poverty, their substance abuse, their lack of employment or housing. There are simply not enough judges to make sure that cases are heard quickly enough to prevent nascent alienation hardening into full blown significant emotional harm to a child. And this situation has been made even worse by the backlog caused during lockdown.

So what’s the solution? I don’t know. We really need to rip it up and start again. The system is not serving either parents or children. But it is never, ever any solution to allow single issue campaigners to bend the ear of law and policy makers to promote the banging of their own particular drum. We have to look at the facts, not promote one ideology over another.

So until this is done, I will remain Schrodinger’s barrister – simultaneously both a ‘troll’ and a ‘leading professional’, depending on who is listening. But it is not my views that change, only the extent to which some are prepared to accept challenge to a preconceived narrative. I can only hope for better things.

Children’s contact with father in prison – who decides?

Z v Z (Contact in Prison) [2021] EWFC 47 (07 June 2021)

This case concerned two children aged 16 and 14 whose father was in prison after being convicted in 2012 and sentenced to 26 years for really serious sexual offences against children, including possession of 20,407 images ranging from Level 1 to Level 5 on the COPINE scale (“Combating Paedophile Information Networks in Europe” – a scale used to measure the severity of child sex abuse images). The children hadn’t seen him since his arrest in 2011 – they were initially told he was working abroad. The father protested his innocence but the Judge commented at sentencing that he was ‘devious and manipulative’ and posed a serious risk. The father was subject to a Sexual Offences Protection Order which placed serious limitations on his contact with children, even his own.

The father wanted to have contact with the children. He applied for both direct and indirect contact but by the time the matter came to court, the argument was about indirect contact which the mother and the Children’s Guardian supported. However, the Prison Governor did not, citing public protection and suggested that the prison might not facilitate contact even if was ordered by the Family Court as being in the children’s best interests. Therefore both the Prisoner Governor and the Secretary of State of Justice became intervenors in the case.

In public law proceedings in May 2012 the court made what appeared to be a final order, prohibiting the father from having contact with the children and even directed the mother’s solicitors to write to the prison to say there should be no contact from the father to the children, mother and maternal grandmother. The father requested in 2016 to be allowed contact and an assessment in 2017 recommended indirect contact. The prison then undertook a multi agency risk assessment and refused to permit ANY contact between father and children. The prison were not clear how the indirect contact could be managed and noted that the mother shared the father’s belief in his innocence. The prison tried to clarify the terms of the final order of May 2012 and whether contact between the father and children would be a breach of its terms.

But in March 2021 the prison confirmed they were NOT in agreement as the risks were just too high – the father had not undertaken any work to address his understanding of his offending, the mother did not provide a safeguard and the children were arguably more vulnerable to grooming now as teenagers. The father was described as ‘dangerous and predatory’. The prison went so far as to say that even if contact was ordered, the prison could not facilitate it as contrary to public protection and prison policy. The mother argued that the children understood the severity of the situation and the need to safeguard themselves; they understood about grooming and in any event would fairly soon be able to have contact as adults.

What approach did the court take?

The court recognised that this subject matter was likely to generate strong views. But the task of the court was to decide if indirect contact was in the children’s best interests, considering the welfare factors set out in the Children Act 1989 section 1(3). No one argued that the children and the father did not have a right to a family life so any breach of that would have to be proportionate.

The next question was whether the Family court could compel a prison governor to comply with an order to facilitate contact with a child and a serving prisoner. The answer to this question was ‘no’ – to do so would be inconsistent with the terms of the Children Act and the wider statutory scheme relating to the management of prisons and prisoners. In essence, the Family Court cannot make a contact order against a public body. This position was set out in Re M (Children) (Contact: Enforcement of Foreign Order) [2018] Fam 230. Parliament granted the Secretary of State of Justice control over prisons – see the Prison Act 1952 and the Prison Rules 1999 (as amended by the Prison (Amendment) (No.2) Rules 2000.

The Secretary of State has a discretion to permit a prisoner to communicate with any person outside the prison and to receive communications and also the power under s34(1) of the Prison Rules to restrict such communications if it is necessary, on the grounds of public safety, the protection of health or morals. Such discretion must be exercised proportionally.

Other relevant statutes are the Children Act 2004; section 11 places a duty on prison governors to safeguard and promote the welfare of children. Under s325 of the Criminal Justice Act 2003, the governor has a duty to assess and manage the risk of violent and sexual offenders. Rule 4 of the Prison Rules 1999 also provides for respect to the need for special attention to be paid to maintaining the relationship between the prisoner and his family.

Within this context, the National Offender Management Service Public Protection Manual 2016 stipulates that it is ultimately the prison governor who makes the assessment as to whether contact is safe, and will examine static and dynamic risk factors.

The case law also demonstrated where the boundary between the jurisdiction of the Family Court and the jurisdiction the Secretary of State – for example in CF v Secretary of State for the Home Department and another [2004] EWHC 111 (Fam), Munby J (as he then was) recognised that the court did not have power to determine if a mother was allowed to remain in prison with her child.

None this prevents the Family Court making an order for contact but the implementation of any such order cannot displace the statutory powers of the Secretary of State for Justice. The fact that the Family Court has made an order will be a ‘significant and relevant consideration’ for the Secretary of State, through the prison governor but the final decision as to whether and how the order is implemented will rest with the Secretary of State.

It is possible to challenge a decision to refuse to facilitate contact via judicial review – see Westwater v Secretary of State for Justice [2010] EWHC 2403 (Admin) where the initial risk assessment was held to be inadequate.

The court decided that it was in the children’s best interests to make a contact order – they both expressed the clear view they wanted to see their father. They had demonstrated some understanding of their father’s offences and why he was in prison. They did not have a dogmatic view of his guilt or innocence. Both were aware of the risks of child sexual exploitation. The court found that both children had an emotional need for some contact with their father, both being at the stage in their development when they are able to question their identity and explore who they are. In particular it was important that they be given the change to have such contact now, before reaching the age of 18 when they would not have the support proposed while they remain children.

The court did not however make a final order – not as an attempt to influence the governor, who had helpfully indicated a further review of the position re contact, but to recognise that if the contact order was not implemented then the court might need to further consider the children’s welfare.