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Parental Alienation: The Modern Way

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My near 30 years in practice have shown me that without a doubt, there are parents of both sexes who do or say things that have a negative impact on their children and which turn them away from a parent they either previously loved or at least tolerated. Sometimes that behaviour is calculated and malicious, sometimes it is a reflection of a huge amount of emotional pain and a genuine, if unreasonable, narrative that the child must be ‘protected’ from the other parent. Both men and women do this but it does seem from my experience at least, the most typical dynamic is a child in the primary care of a mother who makes allegations of abusive behaviour against a father who in turn asserts his child is being influenced against him.

The shorthand term for this kind of dynamic was ‘parental alienation’, now ‘alienating behaviour’ and regardless of what term you use, it continues to provoke increasingly polarised reactions from a male/female divide. Some fathers argue that ‘parental alienation’ is routinely practised by mothers and courts either deliberately fail to get to grips with it or are wholly ineffectual, leading to ‘good dads’ being frozen out. Some mothers assert that it’s a fictional concept, weaponised by abusive men to hide their harmful behaviours and make everything the mother’s fault.

We have moved on from the efforts to establish it as a ‘syndrome’ which has never been a helpful lens through which to examine bad behaviour. The issue is not whether a parent is suffering from some diagnosable psychiatric condition but the facts of what they have done and why, and what is the impact on the children. Of course, if a parent has been abusive then a child has a very good reason not to want to spend time with them. When abuse is established or admitted, it is unlikely to be a case of ‘parental alienation’ and its unlikely to be in the child’s best interests to strive to establish direct contact.

But the cases that cause the most trouble are when the allegations of abuse are not accepted and not proved. The ‘domestic abuse’ complex has grown significantly from my beginnings as a baby barrister in 1998, still 2 years away from the seminal judgment in re L 2000.

The family courts did need to take action to understand domestic abuse and deal with it better. But as the Court of Appeal confirmed in Re H-N (Children) (Domestic Abuse: Findings of Fact Hearings) [2021] EWCA Civ 448 it is not now correct to say that Judges have no or little understanding of abuse and its consequences. The Court of Appeal confirmed that Practice Direction 12J is fit for purpose.

But there are many groups determined to push an opposite narrative – their livelihoods and expensive training programmes depend on it – and the concept of ‘parental alienation’ has thus become more and more of a football to be kicked around opposing camps.

The danger of this is obvious. Those with hammers see nails everywhere they turn. Each camp has developed its own narratives and ‘expertise’ has grown up in each camp which has risked becoming less an objective investigation into the facts of alienating behaviour and more about adherence to a pet theory. The court has to be always alert that it is not getting drawn into any narrative or theory, over and above the proof of necessary facts.

How should we approach cases of ‘parental alienation’?

A good example of where it went wrong, and details of the ‘modern approach’ to parental alienation, can be found in the recent case of Y (Experts and Alienating Behaviour: The Modern Approach), Re [2026] EWFC 38.

Background

This case involved separated parents; the father wanted the children to live with him. Both parents alleged abuse from the other. The court heard evidence from a psychologist in 2019 and on that account alone made findings that the mother had alienated the children. The children, a daughter aged 12 and a son aged 9 were removed to their father’s care and had no contact at all with their mother for the next 6 years.

The son when aged 15 travelled to his mother’s home but was removed into foster care. The mother attempted to challenge the court decision in 2025 under Part 18 of the Family Procedure Rules.

The expert psychologist was not registered with the Health and Care Professions Council and had no clinical or therapeutic practice. There was no trace of any formal application to instruct her.

The original judge concluded that the matter had been set down for a combined finding of fact and welfare hearing and therefore he would consider the expert evidence first. The psychologist applied ‘Attachment Science’ and found ‘significant psychopathology’ in the mother’s profile which impacted the way she organised her relationships with others. She had ‘directly influenced’ the children to hate their father and if they continued to live with her they would be at ‘significant psychological risk’. It did not matter if the mother’s allegations against the father were found or not as the problem was the mother’s ‘hatred’.

She recommended the children were removed from the mother’s care. This lead the children’s guardian to recommend that the children’s wishes and feelings could not be given much weight, due the negative influence of the mother.

After the psychologists evidence, the Judge asked for submissions about whether other evidence was necessary. The mother’s barrister argued that there should have been a finding of fact before expert evidence was heard. The mother’s case was that she had experienced domestic abuse from the father and this puts her feelings towards him into a necessary context. The President commented that the barrister had been ‘entirely correct’ and her submissions fully in line with the guidance now given by the Family Justice Council. But the father and guardian’s barrister argued for no further evidence and the judge agreed.

He accepted the psychologist’s evidence and that a finding of fact hearing would not change her recommendations. He wanted to move straight on to a welfare hearing. The mother’s barrister sought permission to appeal; this was refused. At the final hearing the mother was criticised for not engaging in the therapy recommended and although the children wanted to see her, they could not until she had undertaken therapy. The Judge set out that the court accepting the psychologists conclusions and her findings stand as the court’s findings.

The mother tried again to challenge in 2021 and failed. She tried again in April 2025 and her application wended its way slowly to the High Court until finally in January 2026 the court ordered her son could return to her care. The mother also requested the original findings were set aside, relying on the approach to parental alienation now set out in Re C (Parental Alienation; Instruction of Expert) [2023] EWCH 345 and the December 2024 guidance of the FJC. The case and the guidance made it clear that unregulated experts should not be instructed in such cases and expert evidence should only be directed AFTER findings of fact.

The court considered the law on when a finding of fact should be reopened in family proceedings; this requires ‘solid grounds’ and the court must balance the public interest in finality of proceedings against the importance of establishing the truth and the significance of the findings. There must be genuine new information. The mother did not seek any relitigating of the parties allegations against each other as it would now be pointless; she wanted them set aside. She had never accepted she needed therapy. The father did not want to participate in the court proceedings but asserted that the psychologist’s views had been shared by CAFCASS and LA social workers. The child supported his mother’s application for the previous findings to be set aside.

The President found that the approach adopted in this case had been ‘fundamentally flawed’ and must be set aside (para 83). This case was not about the particular psychologist but the ‘failure of the whole process; which was unsound. He determined that ‘every agency’ involved in these proceedings had failed – CAFCASS, the children’s solicitor, the local authority and the court.

The modern approach

The court sets out the ‘modern approach’ from para 40. The starting point is the Family Justice Council Guidance issued in December 2024, on how to respond to a child’s ‘unexplained reluctance, resistance or refusal to spend time with a parent and allegations of alienating behaviour’. The court must determine any relevant allegation of domestic abuse before deciding if a parent has exhibited ‘alienating behaviour’. Alienating behaviours will not be found in cases where findings of domestic abuse are made which have resulted in a child’s ‘appropriate justified rejection’.

The key point is that the factual matrix around allegations of alienating behaviour is a matter for the court alone; it is not a matter for expert psychological evidence (para 45). A summary of the approach is set out at para 75.

Experts may be necessary to inform the welfare outcome once facts are found, but need to be scrutinised with regard to their regulation, qualifications and access to psychological tests. The guidance from the British Psychological Society (BSP) is that only HCPC registered psychologists have the relevant clinical experience and training to conduct psychological assessments. One problem is that the loose but formal sounding title ‘psychologist’ is not a ‘protected’ title for the purposes of regulation with the HCPC. This covers ‘clinical psychologist’, ‘educational psychologist’ etc. Thus this area is ripe for confusion about who is claiming what.

The President had warned in the earlier case of Re C (Parental Alienation: Instruction of Expert) [2023] EWHC 345 that court must keep its eyes ‘wide open’ with regard to clarity over claimed expertise in this field but the court would not prohibit the instruction of an unregulated psychologist. It would however require caution.

From para 57 the President referred to other cases where the psychologist had offered expert opinion. In 2023 the court was critical of her approach, which was based primarily on her assessment process of ‘attachment based interviews’ rather than a holistic overview of all the circumstances. In 2025 there was a further case where a judge purported to make findings of fact based on the psychologists own ‘findings’ which was an ‘uncertain’ and ‘mistaken’ foundation. The judge should have embarked on a factual investigation of the mother’s specific behaviours.

Commentary

It is clear that things went badly wrong in those cases where a judge allowed an unregulated expert to find the facts of the case; this is a matter for the judge and judge alone. The problem is compounded when the expert operates through a narrow lens of a particular position, such as ‘attachment science’, which necessarily prevents a holistic over view of the evidence.

I note with interest the developing thinking in the family courts about the need for regulation. In 2019 I published an open letter on this site, signed by 77 parents, psychologists and lawyers, which urged the President to agree to a change in the rules to prohibit unregulated experts providing reports. We were ignored.

We said

We feel strongly that the requirement to consider such regulation on a ‘case by case basis’ is potentially unfair to parents who may be acting in person and who may not initially appreciate the potential significance of a failure by any professional to submit to external regulation.

We are very concerned that parents who wish to raise significant concerns about the conduct of an expert who is not subject to external regulation, have no where to go other than the appeal process, which is clearly not a suitable mechanism to deal with the majority of complaints against an expert’s conduct.

However, by the middle of 2025 the Family Procedure Rule Committee consulted on proposed changes to the rules to restrict appointment only those those who are regulated. The outcome of the consultation is not yet known but it is now clear that the courts are ‘strongly encouraged’ to favour the instruction of regulated experts. The President gave guidance from para 73 to say that a ‘psychologist’ should not be instructed unless registered by a relevant statutory body nor chartered by the BPS. This requirement should only be departed from when there are clear reasons for doing.

I agree it is not the ‘fault’ of an individual who has a hammer and is looking for a nail, to be let loose in family proceedings. I doubt that these individuals are deliberately malign or dishonest. But the risk is that they operate in a myopic and hence dangerous way. If they are not regulated, there is no external check or balance. They may claim a formal sounding title that lures a Judge into deferring to an ‘expertise’ that may not stand up to examination. Courts must remember that foundational principle that finding facts is the job of the judge, no one else.

But I do wonder what would have happened if my open letter had been taken seriously in 2019. Perhaps it would have helped in this case and the others cited, to prevent them going so firmly off the rails and the impacts of those court decisions reverberating through many years. My only reassurance in this is that my instincts are sound. Any person who ought to be subject to external regulation but refuses, is someone to treat with extreme caution, and certainly not someone who should ever be paid to provide reports to the Family Court.

The death of adoption

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The rise and fall of adoption

In 1968 there were 25,000 adoptions, reflecting a society where illegitimacy was still stigmatised and there were many babies available with mothers who offered reluctant consent, having no other way of providing for their children. The rates plummeted due to increased access to contraception, legalised abortion and a sea change in society’s attituded to having children outside marriage. However, the number of children ‘looked after’ by local authorities continued to rise.

In 2000 the government introduced a national target to increase the number of ‘looked after’ children adopted, given concern over the number of children who remained in care for long periods of time without a permanent home. This led to the Adoption and Children Act 2002 but by 2006 the national targets had ceased.

The year ending March 2015 saw 5,360 adoptions in England out of about 70K looked after children. This figure had risen sharply from about 3K in 2011, driven by those government policy pushes for permanence via adoption.

By 2025 only 3,040 children were adopted in the year ending March 31st – a slight increase of 20 children from the year before. So we are back to 2011 levels but now with about 80K looked after children.

But even with a drop back to about 3K per year, the UK remains a very obvious outlier when compared to European countries. Germany has a similar number but about half are stepchild adoptions, not adoption from care. The UK does appear to still have a unique emphasis on adoption as the most favoured permanence option; other European countries favouring kinship care or long term fostering.

So adoption appears to be on the decline in the UK. I wonder if a forthcoming decision in the UK Supreme Court may herald its end.

This site was started in 2014 in an attempt to counter the narratives around ‘forced adoption’ – that social workers were paid a bonus of £30K to target babies etc. This post about ‘forced adoption’ was one of the first I wrote, and despite starting with a quote from Lord Wilson in 2014 I am not now confident, looking back, that I fully appreciated the impact of his words

I am a passionate believer in the value of adoption in appropriate circumstances… But I fear that, in making all those orders, I never gave much attention to the emotional repercussions of them. In particular I fear that I failed fully to appreciate that an adoption order is not just a necessary arrangement for the upbringing of some children… the order is an act of surgery which cuts deep into the hearts and minds of at least four people and will effect them, to a greater or lesser extent, every day of their lives…

There are a variety of factors at play. One may be the influence of the ‘nothing else will do’ line of court authorities from 2013 which emphasised that adoption was to be seen as a last resort. Local authority decisions to pursue adoption were reported to fall by 46% by 2014 and the number of placement orders halved.

But the more important factors I suspect are these, which all make up an attack on the continued legal fiction that adoption rubs out the birth family and creates a new one.

  • the increase in post adoptive direct contact, now provided for by law but also made far more obtainable for children via the internet and social media
  • the lack of support for adopted children and parents, particularly given the likelihood that adopted children, even those who are very young, will have suffered significant trauma and loss before being placed for adoption.

The Adoption Barometer 2025 sets out some concerning statistics. It gathered responses from 3,591 including 380 adoptees aged over 16. Those families who had adopted children before 2023, 42% described their family as ‘facing severe challenges or at crisis point’. 72% of those who accessed CAMHS support did not agree it made a positive difference. This experience is echoed by support groups for parents such as Parents of Traumatised Adopted Teens Organisation.

The BBC File on Four released ‘Adoption the Blame Game’ in December 2025. The journalists made freedom of information requests of every local authority. Not all responded but those that did revealed 1,000 adopted children in the UK had been returned to care over 5 years. The true figure is likely to be much higher as only one third of local authorities collect this data.

It is also interesting to note that adoption appears to have collapsed in Australia, and I wonder if this is for similar reasons. From adoption data collected by the Australian Institute of Health and Welfare, there were just 207 adoptions in 2023-24, down from 9,798 in 1971-72, a 98% decline and against Australia’s population more than doubling since 1972. Adoptions now represent less than half of one percent of the number of Australian children in out-of-home care.

International adoptions in American have fallen from 22, 991 in 2004 to just 1,275 in 2023. I assume this reflects a decrease in the number of available babies as birth rates fall and many countries prohibit international adoption, plus of course the booming surrogacy industry. People want babies not traumatised toddlers.

Revoking adoption orders – now before the Supreme Court

It is possible for the court to revoke an adoption order – i.e. discharge/end that order –  using its ‘inherent jurisdiction’ but this is an exceptional and rare step for the court to take because an adoption order is supposed to be an ‘order for life’.  

The case law so far suggests there are only two categories of case where you might be successful

  • procedural irregularities that have led to a breach of natural justice
  • a mistake in finding that the threshold criteria had been reached in care proceedings

The case of PK v Mr and Mrs K [2015] EWCH 2316 considered the law about revoking adoption orders, and is a rare example of where the court agreed to do it given the wholly exceptional nature of the case. A four year old child was adopted but only two years later she was sent to live in Ghana with extended family members where she alleged suffering serious abuse. She was later reunited with her biological mother. The adoptive parents initially attended court but then disengaged completely.

An adoption order was revoked in the case of Re J (Adoption: Appeal) [2018] EWFC 8 but again, the circumstances of this were unusual; the child had been adopted by his stepfather and his mother had lied about the father’s whereabouts. When the father found out he applied for the adoption order to be revoked and the court agreed – but it made no difference to the child’s day to day life as he remained living with his mother.

In AX v BX & Ors (Revocation of Adoption Order) (Rev 1) [2021] EWHC 1121 (Fam) the court did agree to set aside an adoption order after the placement broke down as its continuance was upsetting for everyone.

But the court declined to follow this decision in in X and another [2024] EWHC 1059 (Fam) and held it was not possible to revoke an adoption order due to a change in circumstances after the order was made – here the two adopted children had returned to their birth mother and did not want the adoption order to remain.

The court found that although it was established that the inherent jurisdiction of the High Court included a power to revoke an adoption order made under the Adoption and Children Act 2002 in a case where there had been a fundamental procedural irregularity, the inherent jurisdiction did not include a power to revoke such an order on welfare grounds since such a power would cut across or be incompatible with the scheme of the 2002 Act , which in section 55 expressly dealt with revocation of adoption orders, but only in a very limited category of case, that of legitimation.

The power in section 31F(6) of the Matrimonial and Family Proceedings Act 1984 to rescind an order of the family court was never intended to apply to the revocation of adoption orders under the 2002 Act , since such a broad and unfettered power would be obviously contrary to the public policy considerations in respect of the finality of adoption orders; and that, accordingly, there was no power to revoke an adoption order made under the 2002 Act on the grounds of the child’s welfare (post, paras 73–93).

This decision was affirmed by the Court of Appeal in January 2025 who said the remedy would be to apply for leave to appeal out of time, when the welfare of the child could be considered RE X and Y (CHILDREN: ADOPTION ORDER: SETTING ASIDE)

The Court of Appeal held

Adoption orders are transformative, have a peculiar finality and are intended to be irreversible, lasting throughout life, as if the child had been born to the adopter. That high degree of permanence, from which the benefits to the child of long-term security and stability should flow, is the unique feature that marks adoption out from all other orders made for children; it is, at its core, what adoption is all about. We agree with the SoS that it would gravely damage the lifelong commitment of adopters to their adoptive children if there were a possibility of the finality of the adoption order being challenged on welfare grounds.” 

The Court of Appeal also commented that in cases that do not involve adoption, there is no legal mechanism by which natural parents or children can extinguish the parental bond between them, however much they may wish to do so.

But it has now gone to the Supreme Court – X and Y (Children: Adoption Order: Setting Aside) UKSC/2025/0039 – who considered these arguments on 4 February 2026. [EDIT 24 April 2026 – the Supreme Court confirmed that it was not possible to overturn an adoption order using the inherent jurisidiction In the matter of X and Y (Children: Adoption Order: Setting Aside) – UK Supreme Court]

I will very interested to know the outcome. I am not confident that in 2026 assertions about shoring up the legal fiction of adoption can continue to have weight. Adoptions do not seem to be faltering because families are worried about a challenge to the adoption order, but rather that they cannot cope with traumatised children without significant support, which is not often available. I am not confident that the continued ‘public policy’ justifications for a legal fiction could or should survive the very clearly stated wishes and feelings of children who do not wish to be adopted.

As I commented in discussions about this case on LinkedIn, a system that expects to shore up a legal fiction on traumatised children, without providing considerable and consistent support, is one that cannot survive.

I think adoption is finished. It could only survive as a model that denied the existence of the birth family. Once it was accepted that this was unhealthy and unworkable, and direct contact post adoption was promoted, the notion of adoption as creating an unshakeable legal fiction is unsustainable.

I think adoption has faltered as it was offered as a ‘solution’ to infertility. But the children available for adoption are unlikely to be little babies with clean slates – they will often have experienced huge loss and trauma and it seems the true rate of adoption breakdown – children returning to care via section 20 – is much higher than research suggests. Egg donor IVF may have more ‘success’ rates as child presumably not exposed to trauma in the womb, but I remain uneasy about any process involving children which has as its primary focus making adults feel better.

Gender Affirming treatment for a child – the role of the court to determine disputes

On 3rd June 2025 the High Court handed down judgment in the case of N v N (Expert Evidence on Gender Affirming Treatment) [2025] EWHC 1325 (Fam)

This case involved a child B who was 17 in May 2025. The court refers to the child as ‘she’ but it is clear that B is male so I will use male pronouns. His parents wanted a declaration that B lacked capacity to consent to taking cross sex hormones as ‘gender affirmation’ treatment. The child had a Guardian but instructed his own legal team. The father had also made an application for judicial review of the decision of B’s GP to prescribe hormones to children.

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B lives with his parents and had been prescribed female hormones by a GP since October 2024 pending referral to a specialist gender service. B forged his mother’s signature to get this prescription. In March 2025 CAMHS confirmed that B had ‘gender incongruence’ and accompanying distress.

B’s parents were concerned that there had been no proper holistic assessment of his overall mental and physical health to inform such treatment and this was not in line with the Cass Review and other professional guidance.

This judgment followed a case management hearing, all parties agreeing it was necessary to instruct an expert endocrinologist to assist the court. However, they couldn’t agree that expert’s identity. The parents also wanted to instruct a psychiatrist to report on B’s capacity and asked the court to agree that this was a special ‘medical treatment’ case so each party should be allowed to instruct their own experts. The usual way forward in family cases is for a single joint expert.

B disagreed that a psychiatrist was necessary on the basis that there was no evidence he lacked capacity or that the current treatment risked serious harm to him. If the court didn’t accept B’s position, it should not endorse the parents’ chosen expert, as he sought to advance a particular view about ‘gender affirming’ treatment, i.e. he was not a fan. Equally, the parents’ chosen endocrinologist should not be appointed, as she too ‘has a fixed agenda to advance’ (para 11).

The relevant law

The court then examined the relevant law regarding children’s capacity and referred to the earlier Court of Appeal decision in O v P which I have written about here.

It is useful at the outset to distinguish between three possible issues with which the courts have to deal. First, there is the issue of whether a child under 16 is competent to consent or to refuse medical treatment (see Gillick v West Norfolk and Wisbech AHA [1986] AC 112 (Gillick), and more recently R(Bell) v Tavistock and Portman NHS Foundation Trust [2021] EWCA Civ 1363, [2022] 1 All ER 416 (Bell v Tavistock). Second, there is the issue of whether a child (but also an adult) has mental capacity to consent to or to refuse medical treatment (see sections 1-6 of the Mental Capacity Act 2005). Thirdly, there is the issue of what is in the child’s best interests. This issue arises once the presumption as to competence of a child over 16 to consent or refuse medical treatment is engaged (see section 8 of the Family Law Reform Act 1969 (FLRA 1969), which provides that a child over 16 can give consent in the same way as an adult, and not further consent is required from parents or guardians). Despite section 8, the court still retains the right to override consent given or withheld by a child over 16 on welfare or best interests grounds in very limited and well defined circumstances (see Re W (A Minor)(Medical Treatment: Court’s Jurisdiction) [1993] Fam 64 (Re W).

With regard to the instruction of experts in family cases, the court has to be satisfied that this is ‘necessary’ and where ever possible provided by a single joint expert (see r.25.12 of the Family Procedure Rules 2010).

The court agreed that it was necessary to instruct an expert endocrinologist, and that should be B’s choice of Dr Cotterill, noting at para 38

…the evidence before the court demonstrates that B is currently receiving HRT in the form of spironolactone and oestrogen. The parents seek to prevent B from continuing with that treatment. Within this context, the court does not have expertise on the benefits and risks of HRT used as “cross-sex hormone” gender affirming treatment. Further, the court has no expertise on the benefits and risks of ceasing such treatment after it has commenced, or of continuing such treatment once it has commenced.

Dr Cotterill had been instructed in other cases in this country and could report in 2 weeks. The court noted at para 41

An expert who focuses on the relevant science and medicine and its impact or otherwise on the subject child, rather than on the wider social, philosophical and political context in which that science and medicine is developing, is likely to be of most assistance to the court, having regard to the role of a jointly instructed expert and the duties of that jointly instructed expert under FPR 2010 Part 25. None of this is to impugn the work of Professor Dahlgren and her informed point of view, but rather simply to prefer the expertise and clinical focus of Dr Cotterill on the facts of this case.

The court did not agree that this case was part of a ‘special category’ where a second opinion should be allowed as a matter of course (para 43). The parents could make further application to the court after receiving Dr Cotterill’s report if they considered it was necessary to request a second opinion. The court would also limit the questions to the expert, as the parents’ questions went more to the merits and consequences of gender affirming treatment generally, rather than the impact on B.

But with regard to the instruction of a psychiatrist, the court noted that he parents wanted the court to ‘examine wider questions of policy with respect to gender affirming treatment’ (para 25). The court reminded itself of what the Court of Appeal said in O v P – matters of policy regarding this treatment are for the NHS, the medical profession, the regulators and Parliament. This case was not a forum for determining the wider political, social or philosophical questions arising from the treatment.

The parents had not provided the court with any evidence that B lacked capacity to consent to taking hormones, other than expressing ‘concerns’ about his mental health and doubt as to whether he had been fully informed of the risks. But the court noted that B had litigation capacity to instruct his own solicitors and he wished the court to know he found it ‘insulting’ to have his capacity questioned in this way.

The court did not find there was cogent evidence that B had mental health difficulties to an extent that would impact his capacity. The court balanced the diagnosis of the CAMHS psychiatrist that B had gender incongruence against the parents’ strongly held views that gender affirming treatment would be inevitably harmful and considered that it would have an adverse impact on B to direct an assessment that he is ‘vehemently against’ (para 36). The court therefore declined to instruct a psychiatrist.

The court’s conclusion is firm at para 47

Finally, and to repeat, this case is and always will be about only one thing. Namely, B’s best interests. This is not, as it has been described in some correspondence the court has seen, a “landmark” case. It is already difficult for a young person when their parents decide to engage lawyers and commence litigation as a means of challenging their choices. Those difficulties can only be enlarged if attempts are made to use such already emotionally charged family litigation as a collateral means of addressing matters of policy with respect to gender affirming treatment that are properly the province of the NHS, the medical profession, the regulators and Parliament. The court will not permit that to happen.

Commentary

It is reassuring to see that the court, indeed both parties, agreed that it was necessary to have some expert medical evidence about the impact of cross sex hormones. I also agree that the court is right to warn against using the welfare of an individual child to wage war on a broader ideology. I agree that the courts cannot overstep into matters which are rightly left to Parliament or the good sense of individual doctors.

But. That doesn’t mean the wider setting of these issues can simply be ignored and this is particularly relevant with regard to the issue of capacity to consent to this treatment. The courts should have no doubt following the Cass Review and the investigations into the Tavistock, that this is a field of medical intervention with children that has itself been hijacked by ideologues. The family court remains the last defence of children who have been dangerously let down by medical and social work professions that have rushed to ‘affirm’ any child’s bare wish to ‘change sex’, despite the lack of any compelling evidence that medical interventions have a positive benefit. This is obvious from the response of the Government to banning puberty blockers and now consulting on the wisdom of providing cross sex hormones to children over 16.

It is disappointing to see no discussion at all in the judgment of the Court of Appeal’s reasoning in O v P as to why the court should continue to have oversight over the provision of cross sex hormones, even to a child with presumed capacity to consent. The Court of Appeal were able then to recognise the rapidly changing ground beneath their feet and the need for caution – why couldn’t this Judge?

And of course, in O v P the 17 year old child in that case was found to be articulate and intelligent just like B – but it was later revealed that the child in conspiracy with her father had set out to deceive the court and the Guardian and had been taking hormones for many months. I note that B was also dishonest in forging his mother’s signature to get his hormones on prescription.

Of course one may be dishonest and have capacity, but in my view, that both children were willing to engage in such deceptions is a measure of how significantly matters have spiralled out of control in this field, where those who have decided that this is what they want to do cannot or will not hear any cautionary voice. This is a very dangerous place to lead children.

I was reminded of a comment at the Genspect conference in Lisbon in September 2025, that stuck with me. Parents were often simply dismissed as ‘transphobic’ by medical professionals, but it was forgotten that it was usually only the parents who saw the whole arc of their child’s life and worried about it.

There is a huge and broad canvass of worry and doubt over what is being done to children in the name of ‘gender identity’. It is difficult for me to see how any child has the capacity to consent to a course of treatment that is unevidenced and irreversible. It is not meddling in policy for a court to agree that great caution is needed here. The fact that a child simply refuses to engage in a psychiatric assessment is not an indication that one is not needed (I would argue the reverse), however I agree it makes it practically difficult to arrange.

Of course, the court should never be asked to determine who is on the ‘Right Side of History’ as this cannot be their role in a democratic society. We have to leave the creation of law and policy to the elected politicians.

But the court interprets the law and it cannot do so in a vacuum. Any court dealing with the welfare of a child ought to be willing to consider the wider negative impact of unevidenced and dangerous medical practice in this field on a child’s ability to offer informed consent. That is neither playing God nor dabbling in policy decisions but rather doing the job with which the High Court is entrusted – to exercise the ancient parens patriae jurisdiction to secure the welfare of every child before it.

Good news from Down Under re medical transition of children

Commentary

The decision of Strum J on 9th April 2025 is a very welcome indication that the Australian Family Court is moving away from the notion that medical transition of children should be seen as automatically ‘therapeutic treatment’, in a meticulous and lengthy judgment which unpicks the mother’s case and her expert witnesses with care.

It is both disturbing and alarming to see how the mother was ‘affirmed’ by various experts in a ‘fixed and rigid’ view that her son wanted to be female, but heartening to see a Family Court Judge who was very aware of what was going on and was having none of it. There are clear echoes of Re J [2016] here and a very welcome indication that we are returning to a strict focus on the welfare of the child, rather than a continued pandering to an unevidenced and ideological perspective about the benefits of medical transition for children.

Para 92 is for me particularly interesting. The Judge in this case rejected criticisms by a fellow Judge of the Cass Review as politically motivated calling such remarks ‘speculative’. It is clear that this Judge found the Cass Review authoritative and helpful, relying on its developmental considerations for children and adolescents and citing at length its conclusions about the efficacy and impacts of puberty blockers.

I cheered internally when reading the Judge’s firm rejection at para 106 of any ’emotive suggestion’ that the Cass Review should be seen as part of a ‘third wave’ of transgender oppression, akin to Nazi book burning. Such suggestion had ‘no place whatsoever’ in independent expert evidence and demonstrates ignorance of the true evils of Nazism.

The Judge was clear that earlier decisions of the Australian courts that treatment by way of puberty blockers is ‘therapeutic’ would need to be reconsidered on the better evidence that he had before him (para 194).

It is a relief to see recognition that the mother derived ‘benefit’ from being the parent of a trans gender child (para 203) and the court had grave reservations about her operating sole parental responsibility.

While the judgments meticulous and clear eyed unpicking of the partial and misleading positions of the mother’s experts is very welcome, it remains a matter of great sadness that for so many years, the Family Courts, in a variety of jurisdictions, have been willing to abandon evidence and sense to support an ideology that has the potential to cause irreversible and significant harm to children.

Let us hope this judgment heralds the return of Family Courts all over the world to their fundamental values; to identify and protect the welfare of the child as its paramount concern.

The Judgment

Re: Devin [2025] FedCFamC1F211

This case involved a 12 year old boy. His parents separated when he was 4 years old. Final parenting orders were made in 2018 which provided for the parents to have equally shared parental responsibility. By 2019 the mother had concerns about Devin’s wellbeing and wished him to undertake therapeutic counselling with an organisation dedicated to the well being of LGBTIQ+ community. Devin’s mother said he was suffering from gender incongruence/dysphoria and should be medically transitioned by way of puberty blockers as he had an ‘enduring female gender identity’. This wish to block his puberty was first expressed in 2021 when he was 8 years old and already significantly socially transitioned.

Devin’s father disagreed, asserting that he was rather ‘gender expansive’ and presented with some stereotypically feminine interests/preferences. The hearing took place over 20 days with a significant volume of evidence.

The ‘Reasons for Judgment’ begin with a quote from Maria Montessori

A child has a body which grows and a mind which develops. Both his physiological and psychic development have a single source, life. We should not corrupt or suffocate his mysterious potentialities but wait for their successive manifestations.

The Judge noted that this illustrated the central issue for determination in this case; there are restrictions on the activities and choices of children because their wishes and feelings, while potentially deep seated and genuinely felt, have ‘potentially grave ramifications for their future lives’ and may not be wishes that survive into adulthood.

It is troubling that the Judge comments at para 10

Despite my repeated exhortations to the parents and, to some extent, the experts who supported their respective cases, as well as the lawyers who represented them, to recall that the Court was deciding a case involving the best interests of the child and not the cause of transgender people, that occasionally seemed to fall on deaf ears.

The mother’s experts strayed from their obligations to give objective and unbiased opinion, such as Professor L who described herself essentially as an activist for the transgender cause and who gave misleading responses that omitted findings/material that detracted from her opinion (para 101). She went even further, suggesting that ‘we are currently living through the third wave of transgender oppression’ similar to Nazi book burning (para 105). The Judge was aghast (para 106)

The emotive suggestion, by an expert witness, that the Cass Report forms part of a “third wave of transgender oppression” commencing with the Nazis has no place whatsoever in the independent evidence that should be expected of such an expert. It demonstrates ignorance of the true evils of Nazism and cheapens the sufferings – and mass murder – of the millions of the victims thereof, which included, but were most certainly not limited to, transgender people, as well as gay and lesbian people, amongst other groups of people. I consider there to be no comparison whatsoever.

The mother’s case outline referenced the Change or Suppression (Conversion) Practices Prohibition Act 2021, which the Judge determined was irrelevant to these proceedings, but the Judge noted the ‘chilling effect’ of this Act in the difficulties faced by the father in obtaining expert evidence and alternative treatment proposals for Devin, as there was evidence to suggest that many shyed away from treatment that was not ‘affirming’ in case they fell foul of the Act, which creates criminal offences attracting up to 10 years imprisonment.

One expert stated

Anecdotally, I have heard practitioners express concern that if they do not automatically affirm a child’s declared gender identity they would find themselves accused of “conversion therapy” as per the legislation. This is despite social transition not being beneficial or harmful, exploratory therapy being an acceptable approach worldwide, and the fact that there would be no need nor intention to “convert” [the child] to have a “cis” identity, just merely not blinding affirming and medicalising.

The Judge was blunt. Para 24

I made it clear … that the Court was not concerned “in what the community thinks” or ideologies, but only what, on the evidence, is in the child’s best interests. Ideology has no place in the application by courts of the law, and certainly not in the determination by courts exercising jurisdiction under the FLA of what is in a child’s best interests.

It is heartening to see the Judge pay careful attention to the Cass Review final report (note para 51) and the considerable variation in international guidelines regarding criteria for starting puberty blockers. The experts disagreed with whether or not Devin had gender dysphoria/incongruence and on the likelihood of Devin persisting with either. The Judge was particularly critical of the mother’s expert Dr N and how cross examination revealed ‘significant issues’ with her diagnostic process. She failed to undertake a ‘biopsychosocial’ assessment of Devin (a broad framework that takes into account the full range of interacting factors) and her notes did not support a ‘consistent, persistent female identity’.

Dr L was similarly treated with caution, as she relied on her own work in drafting the Australian Standards of Care and Treatment Guidelines as ‘best practice’, making her ‘judge, jury and executioner’. The Guidance is strongly ‘affirming’ and relies on statistics about suicide attempts if affirming does not occur. The Judge was particularly concerned to note the Guidance does not consider failure to affirm a ‘neutral’ option, commenting at para 74

it is concerning that an oddly binary approach is adopted in relation to children, especially of the age of the child the subject of these proceedings; that is, to affirm unreservedly those who present with concerns regarding their gender, brooking no questioning thereof. The case of the mother, supported by the evidence of Dr N, is that because the child says so, the child is, and must unquestioningly be affirmed as being, female in gender identity. However, that overlooks the obvious, namely, that the child is still a child and not even, if it matters, a teenager.

The Judge notes at para 75 that the child has lived in a gender affirming home environment and has a social circle dominated by transgender young people. Devin was introduced to a transgender ‘support’ group at the age of 6. The possibility of contextual/environmental influence was accepted, even by Dr N. The mother chose ‘gender affirming underwear’ for her son, to pressure and flatten the penile area, without seeking any medical advice as to its potential adverse impacts.

With echoes of the English case Re J [2016] the mother further asserted that Devin wanted to cut his penis off and tried to self harm aged 6. But she made no mention of any of this in an affidavit of August 2020 and the Judge considered this issue had ‘gathered momentum with the passage of time’ and he rejected the mother’s evidence about this noting her ‘rigid, fixed’ views.

Although the mother’s experts opined that ‘gender identity’ is ‘internal and immutable’ and thus not subject to external influence, neither could point to any empirical or substantive basis for their opinion, but offered only anecdotes (para 88). The Judge was concerned by the mother’s team’s dismissal of any other relevant factor such as maternal influence or underlying neurodivergence (para 90). Again the Cass Review is given favourable mention and the mother’s experts criticised for being ‘at odds’ with it (para 91). Bizarrely it was the mother who put the Cass Review in evidence, even thought it did not support her case.

Interestingly, the Judge dismissed the criticism of the Cass Review offered by a brother Judge in the case of Re Ash (No 4) [2024] FedCFamC1F 777, (para 92). To suggest that because the Cass Review was undertaken in a ‘vexed environment’ means that it was driven by ‘political imperative’ was a rejected by this Judge as ‘speculative’. The Judge goes on to quote at length from Chapters 6 and 8 of the Cass Review, that examine developmental considerations for children and adolescents, and the possible factors influencing the ‘very altered profile of the children and young people who are now being seen in NHS gender services’.

The Judge comments at para 98

Importantly, the Cass Report states that “[s]implistic explanations of either kind (‘all trans people are born that way’ or ‘it’s all social contagion’) do not consider the wide range of factors that can lead young people to present with gender-related distress and undervalues their experiences” (at paragraph 8.25) and that, rather, “gender incongruence is a result of a complex interplay between biological, psychological and social factors” (at paragraph 8.52). Those statements accord with much of the evidence in this case, as well as with commonsense, and I place significant weight on them.

The Judge was clear that Dr N had allowed herself to be influenced by the mother and failed to take into account the father’s views or parenting style (para 111). The imminence of the trial was conceded by Dr N as causative of a diagnosis of Devin as incongruent/dysphoric and in this ‘rush’ to provide evidence the mother at least distorted some of Devin’s symptoms.

At para 123 the Judge confirmed that the opinion of Dr M was not, as the mother alleged either transphobic or ideologically extreme. Dr M had said

Humans cannot change sex. It is not possible for [the child] to be a girl, a woman when he’s [sic] older, or a female. He [sic] can only ever be a male, or a male whose body has been medicalised. It should be celebrated that [the child] is a male who refuses to be constrained by current society’s expectations of his sex, while at the same time maintaining the reality of that sex. [The child] should be prepared for puberty in that it brings changes and while these changes can be confronting and distressing for many of the human race, it will give him [sic] benefits when he [sic] is older. It is important that the adults in [the child’s] life remember that puberty is not a disease, it is a normal developmental stage of humans that brings sexual and reproductive maturity. Avoiding this means [the child] will never reach this stage of maturity.

Taking into account all the concerns about the mother’s evidence, the court was not willing to find the mother had proved on the balance of probabilities that Devin is gender incongruent or had gender dysphoria. IF Devin were either, should puberty blockers be administered? (para 134). The Judge was not impressed with Professor L’s opinion that ‘trans people’ are best placed to know what is in their best interests, given the complexity of the medical evidence adduced in this case (para 143). The Judge accepted the evidence of Dr O (para 151) that there was a lack of evidence and expert consensus regarding gender affirming treatment and an alternative avenue is developmentally informed and holistic psychotherapeutic approaches.

The Judge examined the therapeutic approach at length and expressed concerns that the CHGS clinicians overstated the certainty of the evidence and dismissed the possibility of alternative treatment. He cites the Cass Review to note the surprise that the novel use of puberty blockers did not require a more rigorous trial (para 158) and the concern about the impacts of blocking puberty in general.

The impacts on Devin of puberty blockers, given that almost all children who take puberty blockers progress to cross sex hormones, would be to arrest his physical development at Tanner Stage 2. His penis would never grow. He will be sterile. He will have no sexual function. He will likely develop bone thinning. The effects on his brain are unknown. He will be a medical patient for the rest of his life.

The Judge was therefore not satisfied that even if Devin was gender dysphoric, the purported benefits of puberty blockers outweighed the identified risks (para 187). He accepted the opinion of Dr M (para 191)

the most likely best strategy for [the child] would be to give him [sic] time to breathe, to allow life to settle in his [sic] visitation pattern, to not push nor deny any expression, to not seek treatment or information on a condition/state that [the child] may or may not have that may or may not eventuate into something more formative. Both parents should avoid [the child] being “boxed in” to any identity. It is possible that ongoing engagement with [City K Children’s Hospital] Gender Clinic and its affirmative nature could serve to concrete [the child’s] alternate gender identity that might otherwise desist if left to live life without influence of gender affirmation.

The Judge made it clear that treatment by way of puberty blockers is qualitatively different to childhood vaccinations or surgery to mend broken bones. Earlier decisions of the Australian courts would need to reconsider its categorisations of puberty blockers as reversible.

It is also very refreshing to see the Judge note that the mother derived a personal benefit from being the parent of a transgender child; this had influenced her actions.

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

On 19th December 2024, the Court of Appeal agreed in the case of O v P and Q that it was wrong to dismiss proceedings about a child wanting cross sex hormones in the face of parental opposition, once that child was 16. Proceedings would be adjourned to consider the result of a further assessment with Gender GP because of the rapidly changing landscape regarding medical transition. The Court of Appeal agreed it had the power to override a competent child’s consent, even when that child was 16. However, the Court of Appeal declined to designate medical transition should be a ‘special category’ of treatment, thus requiring automatic oversight by the courts.

This is a significant step forward for the family courts which have shown to be dangerously captured by gender identity ideology over the years. Bell v Tavistock in 2020 was a seismic event that triggered the Cass Review – but the Court of Appeal then rowed back. In 2019 the High Court was prepared to find there was ‘overwhelming evidence’ to support the social transition of a 4 and 7 year old. In 2023 the President of the Family Division (who sat in the Court of Appeal for these proceedings) was willing to send a teenage girl out of the country to have her breasts removed – a procedure that would be unlawful here.

The Court of Appeal’s decision that medical transition requires a little more scrutiny in a post Cass landscape is a welcome course correction – but a ‘throwaway’ comment about the Review itself does remind me that we are not out of the woods yet. I will discuss this in further detail below.

Background

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

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

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

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

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

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

The judgment of the Court of Appeal

The Good

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

The mother made the following points

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

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

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

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

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

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

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

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

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

The bad

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

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

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

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

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

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

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

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

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

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

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

Conclusions

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

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

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

The Cleveland Scandal Revisited

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

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

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

Back to Basics – what was the Cleveland Inquiry?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The legacy of Cleveland

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusions

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

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

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

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

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

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

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

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

Further reading

Child Safeguarding Practice Review Panel Nov 2024 The Child Safeguarding Practice Review Panel – I wanted them all to notice

Explores the specific challenges which feature in the identification, assessment, and response to child sexual abuse within the family environment.

“The report reveals that safeguarding agencies were not equipped with the skills and support to listen, hear and protect these children from horrific abuse. It recommends the government urgently puts in place a national action plan to protect and support children at risk

The Independent Review looked at 136 child safeguarding incidents – the most serious cases of abuse and neglect – and found over 75% of the children sexually abused by a family member were under the age of 12.

The report reveals a system in which children are all too often ignored or disbelieved, do not receive the protection they need and in which the risk posed by adults within the family is frequently misunderstood or minimised.  Importantly practitioners from all agencies lack the support, confidence and guidance required to intervene effectively to help and protect children.

Over a third of incidents featured a family member with a known history of sexual offending or who was known to present some risk of sexual harm. This included convicted sex offenders and family members who had been previously prosecuted for sexual abuse, including rape, moving into a home with young children without a strong risk assessment.

In order to combat this, the Child Safeguarding Practice Review Panel is urging the government to develop a national action plan which should include:

    • Reviewing and updating initial training, early career and ongoing professional development and supervision, so that practitioners can fulfil their roles and responsibilities in identifying and responding to child sexual abuse.
    • Ensuring that criminal justice and safeguarding agencies work together so there is robust assessment and management of people who present a risk of sexual harm and who have contact with children.
    • Implementing a national pathway which provides a clear process to support practitioners from when concerns are first identified through to investigation, assessment and the provision of help.
    • Instructing inspectorates to undertake a “Joint Targeted Area Inspection” focussing on multi-agency responses to child sexual abuse in the family environment.

Thousands more children’s social workers needed over next 10 years – new LGA research | Local Government Association Press release Nov 2024

Parents seek an injunction to prevent child having gender affirming treatment

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

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

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

The facts

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

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

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

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

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

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

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

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

The law

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

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

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

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

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

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

Comment

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

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

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

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

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

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

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

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

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

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

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

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

I will examine the following 

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

Some historical context 

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

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

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

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

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

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

The Court of Appeal considered the development of the family courts’ approach to issues of abuse. The definition of ‘abuse’ was expanded in 2017. PD12J paragraph 3 reflects the need to move away from characterising domestic abuse as separate incidents of violence, but looking more to patterns of acts and incidents, including incidents of controlling, coercive or threatening behaviour which can be demonstrated by psychological, physical, sexual, financial, or emotional abuse. Domestic abuse also includes culturally specific forms of abuse including, but not limited to, forced marriage, honour-based violence, dowry-related abuse and transnational marriage abandonment. 

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

The Court of Appeal therefore concluded:

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

The key guidance is at para 139:  

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

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

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

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

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

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

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

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

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

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

Is a fact-finding hearing required?

RELEVANCE, PURPOSE, PROPORTIONALITY AND MITIGATION

Consider: 

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

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

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

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

Participation directions. 

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

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

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

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

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

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

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

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

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

Case Law – when it goes wrong. 

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

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

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

At para 40 of the appeal judgment it is noted:

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

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

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

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

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

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

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

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

The key quote can be found at para 65: 

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

So where next?

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

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

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

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

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

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

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

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

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

Further reading

Report to the UN re ‘parental alientation’ as a ‘pseudo concept’ which leads to courts ignoring domestic abuse https://documents-dds-ny.un.org/doc/UNDOC/GEN/G23/070/18/PDF/G2307018.pdf?OpenElement

Complaint against the report from Gender Parity UK https://drive.google.com/file/d/1FWv2JnDVLXbyjC-LEMShk4KqqQYC7Enl/view

Gulf between the Victims Commissioner and practice in the family courts grows wider – see July 2023 report – The Family Court and domestic abuse: achieving cultural change.

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

Burden and standard of proof

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

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

Do not speculate and do not reverse the burden of proof

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

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

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

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

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

Consider all the evidence

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

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

Reliance on expert evidence

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Pool of perpetrators

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

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

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

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

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

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

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

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

Further reading

W (A Child) (inflicted injury) [2024] – court fell into a number of errors in principle when assessing who was responsible for a child’s fractures.

Leeds City Council v A 2024] EWFC 242 (B) -a useful and comprehensive overview of the legal principles governing findings of fact in cases of injury and sexual abuse of a child

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

Manchester City Council v P (Refusal of Restrictions on Mobile Phone) (Rev1) [2023] EWHC 133 (Fam) – court clear that restriction on use of mobile phone is not an issue of deprivation of liberty, but of the exercise of PR

Further reading

Mobile phone extraction Re P, H-L (Children) (Mobile Phone Extraction) – Find Case Law – The National Archives