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The silence of the Children’s Commissoners

This is a post by Sarah Phillimore

Children’s Commissioners were established by Part 1 of the Children Act 2004 following recommendations made by Lord Laming in the Victoria Climbie Inquiry.  Victoria died in February 2000 after months of appalling ill treatment by Marie-Therese Kouao and Carl John Manning. This was despite Victoria being known to at least two housing authorities, four social services departments, two child protection teams of the Metropolitan Police Service (MPS), a specialist centre managed by the NSPCC, and had been admitted to two different hospitals because of suspected deliberate harm. The Inquiry found an urgent need for more effective inter-agency co-operation and sharing of information about children.

The Commissioner has statutory obligations to to encourage decision makers to take children’s best interests into account, along with powers to gather data and to enter premises. The Children and Families Act 2014 further strengthened this remit. The Commissioner operates with a team of staff, and works with various advisory and children’s groups, stakeholders and specialists.

All four offices of the UK Children’s Commissioners work closely to promote and safeguard the rights of children and young people in the UK, including submitting joint reports on the status of children’s rights in the UK to the UN Committee on the Rights of the Child. 

So one might assume that the recent decision of Bell v Tavistock and the implications for children would be something within the remit of the Children’s Commissioner?

I looked at the websites of the four Commissioners in turn. 

Looking at the Northern Irish Children’s Commissioner’s website https://www.niccy.org/about-us/ it has 8 ‘High level Corporate objectives’ (HLCOs) including HLCO 5 – Children’s right to health and protection from violence or abuse

Searching the site for ‘Keira Bell’ ‘The Tavistock’ or ‘Puberty blockers’ returned no results. A search for ‘transgender’ produced three. A blog from 2015 commenting that it was difficult for transgender children to feel safe as who they were, approving comment in November 2019 on the publication of the Guidance for Schools, EOTAS Centres and Youth Service on Supporting Transgender Young People by the Education Authority, and then way back in January 2004 Comments By The Commissioner For Children And Young People At The Launch Of The Youthnet Report “Shout” On The Needs Of Young People In Northern Ireland Who Identify As Lesbian, Gay, Bisexual Or Transgender where the then Commission Nigel Williams commented: 

… we are simply talking about the freedom to discover who you are, what your identity is and to do that without being bullied, without being verbally abused, without being so tortured by society’s attitude that you contemplate suicide.

So the linking between homosexuality and transgender identities goes back a very long way indeed, thus cementing the idea that a child who identifies as transgender is simply discovering their authentic self.

The English Children’s Commissioner https://www.childrenscommissioner.gov.uk/ describes her role as: 

She speaks up for children and young people so that policymakers and the people who have an impact on their lives take their views and interests into account when making decisions about them.

She does this by first gathering evidence: talking to children and young people, requesting information from public institutions and then carrying out research and compiling information on the wide range of things that affect children’s lives.

She is the ‘eyes and ears’ of children in the system and the country as a whole and is expected to carry out her duties ‘without fear or favour’ of Government, children’s agencies, and the voluntary and private sectors.

I searched the English site for the terms ‘Keira Bell’ ‘Tavistock’, ‘puberty blockers’ and ‘transgender’. There were no results for any term. Let’s have a look at Scotland https://cypcs.org.uk/. Nothing found. Wales? https://www.childcomwales.org.uk/ Nothing. 

 This was a surprise. Considering the remit of the various Children’s Commissioners I had expected at least some comment. However, it is clear that at least some of the Children’s Commissioners had been giving this matter some thought after I was contacted by someone who had made a Freedom of Information Request to the Scottish Commissioner. 

 FOI request to the Scottish Children’s Commissioner

A request was made on 7th January 2021 to the Children and Young People’s Commissioner Scotland for information held on the Keira Bell High Court judgment of 1st December 2020:

1.    Correspondence and other relevant material between the Commissioner/staff and other UK Commissioners/staff

2.    Internal communications between the Commissioner and staff

3.    External communications from the Commissioner’s staff to external organisations. 

This was refused and an internal review of that refusal was sought on 30th March 2021 on the basis that:

  1. It is in the public interest to disclose the information that was withheld
  2. The reasons for refusing disclosure were not credible
  3. There has been stalling at every turn and information released only when pressed
  4. This goes against the spirit of transparency and openness 

This was also refused on 27th April 2021 relying on the statutory exemptions to disclosure that would cause ‘prejudice to effective conduct of public affairs’. The reasons for refusal are worth examining. 

There was an email chain showing that the Children’s Commissoner for Wales had forwarded to the Scottish Commissioner a request for legal advice in relation to the Bell v Tavistock judgment. The Scottish Commissioner commented in its refusal to disclose:

‘The rights of transgender children and young people in the UK is a highly sensitive matter and the Bell v Tavistock judgment is currently under appeal and therefore a live legal issue. The Chldren’s Commissioner for Wales chose to share with us their initial legal advice with an expectation that this would not be disclosed beyond the officer of the Children and Young People’s Commissioner Scotland’

The concern was that disclosure of this advice would ‘substantially inhibit’ collaboration between the various Commissioners and this would be ‘material and substantial’ prejudice. 

The Scottish Commissioner did not dispute the public interest in the issues raised by the Bell judgment. But that nature of these issues and the manner in which they are discussed were a strong argument against disclosure. 

Regarding the Keira Bell judgment, a safe space is essential due to the extremely and unusually toxic nature of the debate around these issues, which are regarded by individuals on both sides of the debate as impacting on existential matters of personal and group identity.

Such concerns had been raised before, in a response to the Gender Recognition Reform (Scotland) Bill Consulation:

All those participating in the debate should be  mindful of the need to keep the discussion focused on the issues and on the law rather than personalising them. Failure to ensure that these conditions exist is, in our view, highly unlikely to result in effective, rights compliant law and poses a serious risk to the rights and interests of many children and young people

I don’t disagree with that at all. But it is concerning to see this used as an argument to REFUSE to share correspondence and advice between the various Commissioners’ offices. Surely there can be no chance that these communications would inflame tensions by using abusive language? Surely they are simply focusing on the law and ensuring it is compliant with children’s rights?

It seems likely that there have been some ‘robust’ views by various members of staff as the letter of refusal goes on to say 

‘…public bodies must be mindful of their positive obligation not to inflame matters. It is therefore imperative that any public comment by our office (or Wales) is very carefully drafted to avoid exacerbating this toxic environment for children and young people. This means we must ensure we can discuss, debate and consider issues from several angles before deciding whether to make public comment on them, and what the nature of that comment should be’

Reliance was also placed on claims of confidentiality of communications between a legal adviser and their client, and disclosure of personal information. 

So all that we know is this. On 9th December 2020 Sally Holland from the Welsh office forwared to Bruce Adamson in Scotland an email from Rachel Thomas saying ‘not sure when you’re speaking to Bruce about this case’. The next three paragraphs are redacted as exempt from disclosure. The email ends ‘If you’d rather me speak to Bruce about it to save you getting up to speed on it all I’d be happy to so – appreciate he might want a Commissioner discussion of course but the offer is there if it assists’. 

On 16th December 2020 emails were then exchanged between members of the Scottish officer to say ‘yes, let’s discuss. I’m clearer on what he’s looking for now I think’. Then a heavily redacted email which ends ‘Can we discuss tomorrow please?’

Conclusion

I have some sympathy with the need to exempt from disclosure material which represents the necessary ‘to and fro’ as people raise, discuss and refine issues of importance. I also understand the importance of maintaining confidentiality around legal advice. But it is very concerning that an organistion with the status of a Children’s Commissoner is clearly concerned that the nature of the discussion within its organisation and with the other offices may risk contributing to the ‘toxic nature’ of the debate. How could this be possible given that all who work there must be alive to the need ‘to keep the discussion focused on the issues and on the law rather than personalising them’?

I suspect there are two problems here. Given the nature and extent of institutional capture in the UK, individual staff members may have gone way beyond a focus on the law and engaged in moral castigation of those ‘hateful bigots’ who would seek to impede a child’s identification of their ‘authentic selves’. OR there is a realistion that simply commenting on the relevant law will be seen and seized upon by many as a ‘hateful’ ‘bigoted’ attack on the rights of an ‘exceptionally vulnerable’ minority. 

The person who made the request will now take it to the ICO. I will be interested to know if the reasons for refusal are upheld – I suspect they will be. It is fair enough to note that Bell v Tavistock will be the subject of further hearing before the Court of Appeal at the end of June. The time for detailed and thoughtful comment from the Commissioners will be when they have had time to process and understand the decision. 

But the comments made in the refusal letter are worrying as we see that the toxicity of this debate is clearly having a damaging impact on the ability of many to discuss the actual law and its impact on children. The ‘toxicity’ of course I believe comes from one ‘side’ only – the side which did not wish to discuss any of this, the side which cried ‘no debate’ at every opportunity, the side which is happy for children to submit to experimental medical treatment with long term consequences in order to support the validation of adult decisions about their ‘gender identity’. 

Victoria Climbie was tied up in a bin bag and left to die in a bath. After her death the doctors examining her could find not one part of her body that was left unmarked. She was murdered by two adults who were supposed to be looking after her and no one did anything to help her until it was far too late. Adults do terrible things to children. Sometimes they tell themselves that what they are doing is right and proper. Children need ALL of us to step up and protect them, and we ought to be confident in the reliance we place on those statutory bodies who are under legal obligation to do so. I hope that very soon after the Court of Appeal judgment in Bell v Tavistock– which ever way it goes – we will see clear commentary and recommendations in a joint report from all four of the Commissioners.

You can’t handle the Truth! Part 2

Local Authority misconduct and failure to meet the needs of children.

In March 2021 Keehan J handed down judgment in the case of YY (Children: Conduct of the Local Authority) [2021] EWHC 749 (Fam) (26 March 2021)It lays bare the failures of the local authority in excruciating detail. The Head of Children’s Services admitted to and apologised for very serious failings and there will be an extra-ordinary general meeting of the local council on April 27th 2021 to consider them.

The judgment is interesting, not merely because it sets out the Judge’s condemnation of the local authority in clear and damning terms but also because of what I think it reveals of the wider problems which may have contributed to this widespread and longstanding failure to meet the children’s needs.

I think we have a big problem in our family court system with the notion of ‘the truth’ being established at 51%, there is a now dangerous dearth of available mental health support for children AND the ‘tick box mentality’ combined with drive to meet externally imposed ‘performance indicators’ is corrupting proper analysis of what each individual child needs. None of this is said to attempt to excuse what went wrong in this case. But I do think its worth consideration. If ‘lessons are to be learned’ we all need a firm foundation on which to build our learning. At the moment, I do not think we have it and thus ‘blaming and shaming’ various local authorities in turn for their failings will offer nothing more than a fleeting sense of self righteousness. I think its high time we directed our anger at the systemic failings which allow such individual failures to flourish.

This case turned on a finding of fact which found that the children had not been sexually abused by their wider family as they alleged, but had been exposed to their mother’s poor mental health and sexual activity in the home. The children are now aged 17, 13 and 11. They had a 14 year old sister C, who sadly died in 2019. They were removed from their family in 2012 and moved to live with foster carers where they remain. Care proceedings were heard in 2014 and the Judge made findings of fact that the children’s allegations were not true and that they needed help to understand the reality of their situation and to be supported to have contact with their mother. This never happened.

It seemed that the foster carers were never helped to understand the fact finding judgment or even given a copy of it. They believed what the children were saying about the allegations. The local authority it appears was keen to meet their ‘performance indicators’ to get the children out of foster care and for the foster carers to be made ‘special guardians’. This lead to the author of an assessment, which warned against the foster carers, being pressured to change her recommendations and to support the making of a special guardianship order. The children had no life story work and what therapeutic intervention existed was little and late – and proceeded on the basis that the children had been subject to serious sexual abuse, despite the findings of the court that they had not.

Unsurprisingly therefore, the mother was not able to establish a relationship with her children and felt that she had been sidelined and ignored; demonstrated most tragically by the death of C in hospital in 2019.

The findings against the local authority are stark and set out in Appendix 1 to the judgment, including:

  • failed to use HHJ Rundell’s fact-finding judgment as a basis for challenging and changing the children’s distorted perceptions of their family.
  • failed to promote contact between the children and their mother over significant periods of time
  • failed to manage the foster placement appropriately or meet the emotional needs of the children

So what went so horribly wrong? And why do I think there are wider problems at play than simply the incompetence and mis-management of a case by one local authority?

Establishing the truth at 51%.

First, a brief summary of the fact finding process when allegations of sexual abuse are made. The burden of proof is on the person making the allegation and the standard of proof is ‘the balance of probabilities’ , i.e. is it ‘more likely than not’ that something happened. Findings must be based on evidence; you can draw inferences from the evidence but suspicion and speculation do not count. The court has to look at all the evidence and consider each piece in the context of other pieces. The evidence of parents is very important and the court must form a clear view of their credibility and reliability. It is common for people to tell lies during court proceedings but the court must always remember that there are many reasons why people don’t tell the truth and there should be no automatic assumption that this means the parents are telling lies about everything.

In Re AS v TH 2016 EWHC 532, MacDonald J set out particular guidance when determining issues of sexual abuse.

  • Where the evidence of a child stands only as hearsay, (i.e. the child’s account is being shared with the court by someone else and the child is not present to give their own account) the court weighing up that evidence has to take into account the fact that it was not subject to cross-examination (Re W (Children)(Abuse: Oral Evidence) [2010] 1 FLR 1485).
  • It is a two stage process – is there evidence of sexual abuse? If so, is there evidence about who did it?
  • The court must have regard to government guidance from March 2015 which advises that “if a child reports, following a conversation you have initiated or otherwise, that they are being abused and neglected, you should listen to them, take their allegation seriously, and reassure them that you will take action to keep them safe.” 
  • If a child does make allegations, the 2011 statutory guidance ‘Achieving Best Evidence in Criminal Proceedings’ [ABE Guidelines] must be followed. Initial questioning must be brief and detailed accounts not pursued until a more formal interview. This is to prevent evidence becoming corrupted by leading questions or assumptions.
  • The formal interview must facilitate a ‘free narrative’ from the child and avoid leading/loaded questions.
  • Failure to meet the ABE Guidelines doesn’t mean a Judge cannot rely on hearsay evidence from a child, but of course it is likely to make it more difficult to prove what actually happened. See Re JB 2021 EWCA Civ 46.

There is clearly a lot here that can go wrong and it is unsurprising that many of those not directly involved with the fact finding process – or even some that were! – may struggle to accept it, particularly when children continue to assert that what they say is true.

In the vast majority of my cases involving serious allegations of sexual abuse, the ABE Guidelines are NOT met, even and most worryingly, by the police officers who are supposedly trained to implement them. It is clear that many social workers and teachers are still ‘trained’ to believe a child and frequently refer to what a child says as ‘disclosure’ (the secret thing that is made known) and proceed from that basis. A combination of the susceptibility of children (see the work of Professor Ceci and others) and their wish to please adults, together with well meaning but often disastrous attempts to elicit information about what happened, often means that by the time we get to court there is a very muddled picture indeed, with various confused and contradictory accounts recorded.

The court does the best it can. But – as many Judges have commented – they can only decide the case that is in front of them. Despite frequent exhortations to remember that care proceedings are ‘quasi inquisitorial’ and that we should not be directing our focus on adversarial attacks, the reality is that our system is adversarial, as opposed to ‘inquisitorial’ where the Judge takes the lead on investigation.

Despite these serious and obvious limitations to the fact finding process, there still appears to be a strange belief in some quarters that the family court is able to – indeed has a moral duty to – find the ‘absolute truth’ for the benefit of the children, who deserve to know what happened to them. I do not doubt that children deserve to know the truth about whatever tragedies and suffering have impacted their earliest lives. But I have significant doubts that a finding of fact process with a standard of proof on the ‘balance of probabilities’ is the vehicle to give them this knowledge. Or, at the very least there ought to be some greater recognition of the limitations of the process. A stark example of when a court seriously over-reached was with regard to Ben Butler – ‘exonerated’ on a balance of probabilities from hurting his daughter, he went on to murder her.

Of course the court has to do something. I agree that the criminal standard of proof when applied to child protection cases is likely to leave some children at risk of not being protected at all. As the argument goes – none of us would require proof beyond a reasonable doubt before acting to keep our own children safe, so why should any other child get less favourable treatment? I don’t doubt the sense of all this at all. But – I do doubt that the obvious limitations of the fact finding process are considered properly, or in some cases at all.

In this case the children clearly believed they had been sexually abused. This coloured the reactions of their foster carers against their mother, it infected the basis on which therapy and intervention was offered. How could it not? I have had many cases where children made allegations of sexual abuse which were fantastical – they simply could not be true or the child would be dead. The court makes a finding they are not true. Therapy is offered the child. We ask the expert how the child can be assisted to ‘re-frame’ their narrative and to re-establish a relationship with the adult exonerated. The expert, sometimes quite angrily replies that this is simply an unethical request and the child’s reality is their reality.

Memories are slippery things. We do not access them as a playback of a recording. Each time a memory is re-visted and re-examined it is re-created. The ‘Satanic Panic’ of the late 80s and early 90s showed how easy it was to convince children (and prosecutors) that every spiralling fantasy of murdered babies elicited under interrogation was actually ‘the truth’ and a ‘real memory’. But I imagine that for children – as these were – exposed to a parent with mental health problems and a household with lax boundaries around sexual activities, that they were frightened much of the time and the narrative they have constructed around abuse makes perfect sense given their experiences and feelings as they grew up.

To help children unpick all this is obviously a task of extreme skill. The bottom line is and remains that we simply do not have enough or sufficiently funded resources for children to allow them to benefit from the timely and expert intervention that they need. Of course, this does not excuse the failure of the local authority to make attempts to source it and to mispresent the views of an expert – as happened here. But it must be considered. If we do not take steps to remedy this then it is difficult to see how ‘lessons can be learned’ or children can reliably access the help they need.

The corrupting impact of ‘key performance indicators’

It seems that the second most serious failing here was the local authority’s drive to change the foster carers to special guardians, in order to show that the children were not ‘languishing’ in long term care and the failure to take proper action over many years.

The dangers of being driven by external ‘performance indicators’ are obvious. For example, there is a real concern that Tony Blair’s drive when Prime Minister, to get children out of long term foster care and into ‘loving’ adoptive homes has lead to a perverse incentive for some local authorities to move more swiftly with regard to new born babies than they might otherwise have done. Establishing ‘targets’ often makes the ‘target’ the focus, not what is happening on the ground. Further, allow a period of ‘drift’ over many years to then influence the speed and direction of decisions, can be disastrous.

The drift over so many years clearly influenced a decision to ‘push’ through with Special Guardian Orders and lead the local authority to ignore all the warning signs that the foster carers were not assisting the children to come to terms with what had happened or meet their emotional needs – particularly for a relationship with their mother, who had failed them but – according to the court findings – not in the ways the children asserted.

In this case the court commented at para 141:

Ms Straughan asserted that, in consequence of the local authority’s looked after children (‘LAC’) reduction policy, she, and other social workers had been placed under pressure to recommend that SGOs were made in favour of foster carers and/or kinship carers. Further, she said she had come under pressure to recommend a SGO be made in respect of these children.

and at para 146:

Ms Straughan believed there were some positives about the children’s placement with the interveners: the children were settled and felt part of the family, the children, however, struggled with their sense of identity, with their views about their parents and wider family and with the issue of contact. These concerns and the concerns about the attitude and approach of the interveners towards the birth family escalated after Child C’s death. Ms Straughan did not consider that the interveners genuinely believed that contact with the parents and their wider family was in the best interests of the children.

Conclusions

The problems here, the lamentable delay, the failure to properly inform and manage the foster carers, the misrepresentation of expert views and the pressure on social workers to change their recommendations, cannot be simply excused by reliance on pressure of work or the systemic problems in the system highlighted above. The local authority appears committed to recognising why and how it failed and taking steps to put it right. The outcome of the extra-ordinary general meeting will be worth studying.

But I do make a plea for all to remember the water in which we swim. Not all of these failings are down to individual malice, laziness or lack of thought. While there remain tensions between meeting targets and the needs of children and while the support services they need are not readily available, we are going to continue to see cases of sub optimal performance and continued harm done to children even as they are supposedly ‘rescued’ from their birth families.

Exercise of parental responsibility by the LA in applications for immigration status

Re W and Re Z (EU Settled Status for Looked After Children)  [2021] EWHC 783 (Fam) 

This is an interesting decision which looks closely at the ambit of section 33 of the Children Act 1989 and how local authorities may exercise PR for children subject to care orders. It concludes that there are only a small category of cases where the LA cannot proceed to ‘over rule’ parents using section 33. Applications to permit a EU national child to remain in the UK now that ‘freedom of movement’ has ended, did not fall within that category of cases that needed the court’s approval. 

Judgment was handed down by Mr Justice MacDonald on 31st March 2021

This case involved 3 separate applications made by local authorities under the inherent jurisdiction of the High Court about the operation of the United Kingdom’s European Union Settlement Scheme (hereafter “the EUSS”) regarding children who were subject of care orders. Without such an application, the children’s right to remain in the jurisdiction where they were settled, could be jeopardised. The court delivered one judgment to cover all cases, as the issues and questions raised were the same. 

Questions before the court 

Where parents of an EU National child subject to a care order either oppose an application for their child for immigration status under the EUSS (or the application for a passport or national identity document that would allow this application to be made) or can’t be found to give their agreement, can the local authority proceed to make the application relying on section 33 (3) of the Children Act OR does it need the court’s permission?

A care order allows the local authority to share parental responsibility for a child with the parents and section 33 allows a local authority to restrict others with parental responsibility from exercising it, when it is necessary for the child’s welfare. 

The court found that the local authority could make these applications under section 33 of the Children Act 1989. 

If the EU national child requires a passport or other documents about identity to be issued by the EU Member State of the child’s nationality and requires a court order if the parents can’t be found or don’t agree, does this court have the power to make an order and if so what is it?

The court found that the court did have the power to make such an order under the inherent jurisdiction but the local authority should first check with the EUSS what documents would be required as it may be possible to proceed without a passport. 

The court was assisted by the various local authorities providing evidence about their procedures for securing immigration status under the EUSS for looked after children who were not subject to care orders. The Secretaries of State for The  Home Department and Education also accepted the court’s invitation to intervene to help with the requirements of and operation of the EUSS as it relates to looked after children. Therefore the judgement looks at the position of all looked after children, whether they are subject to a care order or not. 

Background to the applications  

Between July and November 2020 the Home Office surveyed local authorities to provide an estimate of the number of looked after children and care leavers who were eligible to apply to the EUSS, and found 3,300. Those subject to a care order or placement order numbered 2,080 and so far 1,520 applications had been made. The deadline for the applications is 30th June 2021 so it was clearly very important that all local authorities understood and discharged their duties towards children who are eligible to apply. Without such an application for ‘settled status’ the children’s right to remain in the country would be jeopardised. Guidance was issued by the Home Office in April 2020 highlighting that local authorities must in all circumstances seek the best possible outcomes for the looked after child and should address immigration issues as soon as possible and take legal advice as appropriate. 

The father in one case involving two Polish children made his opposition very clear by emailing the court to say 

“I refuse to give permission for settlement status and passports I do not want My children bonding with strangers any further I want them to be with their family ideally their Mother even though I am not a part of Her life anymore outside of being the father of My children and I would also love nothing more than to be a part of their lives even if insignificant family is very important to Me a Muslim Our values rely heavily on what parents teach their children about life and I feel like them being with non-Muslims is taking away my right as their parent to teach them right and wrong based on the teachings of our creator and also I refute all evidence that social services and community has provided that has made Me seem unfit as a parent I have tried my best and made a few mistakes but I definitely know that My mistakes don’t warrant Me being stripped of parenthood entirely.” 

The local authority therefore applied for permission to invoke the inherent jurisdiction to allow it to apply for a passport for each of the children and then amended its application to include permission to apply for immigration status under the EUSS. The children’s guardian supported both applications. The Care Proceedings Unit at the Polish Embassy reassured the court that granting settled status in the UK would not have any negative impact on the children’s Polish citizenship. 

The local authority wanted clarity as to whether it could make these applications under section 33 of the Children Act or whether this fell within the small group of cases where the court’s approval is needed. If the Polish Embassy required a court order, the court is able to and should make an order under the inherent jurisdiction. 

THE RELEVANT LAW AND GUIDANCE 

End to freedom of movement – The EU Settlement Scheme 

Under the terms of the Immigration Act 1971, save for those with a right of abode, Irish citizens and those persons who are exempt from immigration control, every person requires leave to enter or to remain in the United Kingdom. Prior to 31 December 2020, EU, other European Economic Area (EEA) citizens and Swiss citizens did not require leave to enter or remain in the UK by reason of having rights of entry in accordance with the EU Treaties and the Free Movement Directive 2004/38/EU, as given effect in domestic law by the Immigration (European Economic Area) Regulations 2016.  After 31stDecember, those regulations were repealed by the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020, bringing to an end freedom of movement between the UK and the EU. 

Part 2 of the Withdrawal Agreement between the UK and the EU, reached on 17 October 2019, sets out the provisions of the Treaty concerning citizens’ rights. EU, other EEA citizens and Swiss citizens who were resident in the UK prior to 11pm GMT on 31 December 2021 can continue to exercise their right to reside in accordance with the Free Movement Directive, provided they continue to meet the conditions of that Directive. However, pursuant to Art 18 of the Withdrawal Agreement, the UK requires EU, other EEA citizens and Swiss citizens who wish to continue to take advantage of their rights under the Withdrawal Agreement after 30 June 2021, to apply for a new immigration status in the UK. There is provision for ‘late applications’ where there are “reasonable grounds” for the failure to meet the deadline, which reasonable grounds will include “children whose parent, guardian or local authority fails to apply on their behalf.” But if an application is not made, that person becomes ‘undocumented’ which can have an impact on eligibility for benefits and services, and brings a risk that the person will be removed from the UK. 

Therefore the UK set up the EUSS in March 2019 to give people permission to enter or remain in the UK. The application must be made using the prescribed application process and a valid application requires proof of identity and nationality. The Secretaries of State for the Home Department and Education argued that parental consent is not required for an application to be made on behalf of a child, as the rights from which children benefit under the Withdrawal Agreement do not depend on parental agreement. The guidance to local authorities emphasises that children’s wishes and feelings should always be considered and children should be made aware of their entitlement to independent advocacy support.

A key requirement of the application to the EUSS is proof of identity and nationality which is usually provided by a valid passport of national identity card.  If the child doesn’t have these documents, then the local authority should endeavour to get one from the child’s country of origin before making the application to the EUSS.  However the immigration rules have a discretion to allow alternative evidence of identity and nationality where the applicant is unable to obtain or produce the required documentation due to circumstances beyond their control or to compelling practical or compassionate reasons. Lack of relevant documents was noted to be a serious problem in the Home Office survey of those children eligible to apply. Local authorities also have a dedicated phone line to the Home Office Settlement Resolution Centre which provides support for applicants. The Home Office Policy Equality Statement, published in November 2020, also recognises that age is a protected characteristic under the Equality Act 2010 and the impact of the EUSS on children has been carefully considered, having regard to Article 3 of the UN Convention on the Rights of the Child. Therefore caseworkers will be looking for reasons to grant applications, not refuse and should exercise discretion in favour of applicants to minimise administrative burdens. 

Is an application to the EUSS something a LA can do without parental consent? 

The court was clear at para 42, there are some decisions so serious that it would not be appropriate to allow the local authority to act in reliance on section 33(3)(b) of the Children Act 1989, and an application to the court needs to be made. Three Court of Appeal decisions provided guidance as to the boundary between those matters that are appropriately dealt with by a local authority pursuant to the power conferred by s.33(3)(b) of the Children Act 1989, and those decisions that are appropriately referred to the court for determination.

In Re C (Children) [2016] EWCA Civ 374, found a local authority could not use section 33 to stop a parent registering a child with a particular name; this issue should come to court.

In Re H (A Child)(Parental Responsibility: Vaccination) [2020] EWCA Civ 664 the Court of Appeal held that routine vaccination under the United Kingdom public health programme, in circumstances where there was no contra-indication in relation to the child in question and the link between the MMR vaccine and autism had been definitively disproved, could not be regarded as decision of such magnitude that it would be wrong for a local authority to use its power under s. 33(3)(b) to override the wishes or views of a parent

in Re Y (Children in Care: Change of Nationality) [2020] EWCA Civ 1038, the Court of Appeal examined if the local authority was allowed under section 33 to take steps to apply for British citizenship for the subject children in the face of parental opposition and where that course may lead to a loss of their existing citizenship. The Court held that in circumstances where changing a child’s citizenship is a momentous step with profound and enduring consequences that requires the most careful consideration, it would not appropriate for the local authority to proceed under s.33(3) of the Children Act 1989 in the face of parental opposition and where that course may lead to a loss of their existing citizenship

The Court noted what King LJ found at para 99 In Re H (A Child)(Parental Responsibility: Vaccination) that section 33 of the Children Act 1989 is not an invitation to local authorities ‘to ride roughshod over the wishes of parents whose children are in care.’ It was suggested that parents could make their own application to invoke the inherent jurisdiction if the local authority wished to vaccinate against their wishes. However, as was noted in In Re Y (Children in Care: Change of Nationality), it is often not a realistic remedy to expect parents to take legal action, particularly if their immigration status is insecure. 

The Inherent Jurisdiction 

The starting point is section 100 of the Children Act 1989. It cannot be used to put a child in the care of or under the supervision of a local authority and the local authority must get the court’s permission to make an application. The court will only give permission if there isn’t any other way of achieving the desired result and there is ‘reasonable cause to believe that if the court’s inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm. ‘ The courts have noted that section 100 is ‘difficult’ and ‘at first blush’ would be seen to preclude a local authority from applying to use the inherent jurisidiction to by pass section 33 of the CA. However, it is clear that this is the route which is now approved and adopted for ‘difficult cases’ – however applications in those cases involving serious issues around medical treatment, ought to be made by the relevant NHS Trust, rather than the local authority. 

The Family Procedure Rules 2010 in PD12D at para 1.1 states with respect to the use of the inherent jurisdiction: 

“It is the duty of the court under its inherent jurisdiction to ensure that a child who is the subject of proceedings is protected and properly taken care of. The court may in exercising its inherent jurisdiction make any order or determine any issue in respect of a child unless limited by case law or statute. Such proceedings should not be commenced unless it is clear that the issues concerning the child cannot be resolved under the Children Act 1989.” 

DISCUSSION 

The Court decided that applying for passports or EUSS status was something the local authority had the statutory power to do under section 33 of the Children Act and it didn’t need to make an application to the court. 

The court found that Parliament intended a local authority which has been granted parental responsibility in respect of a child by operation of law

to be able, following a rigorous procedural and legal process undertaken before a court prior to the granting of such orders and if necessary to safeguard and promote the child’s welfare, to limit the power of a parent to make major decisions regarding a child’s life and instead to take those decisions in place of the parent by exercising its parental responsibility for the child.

There are statutory limitations in s 33(6) and (7) that the local authority cannot cause the child to be brought up in a different religion, change the child’s surname or remove him from the jurisdiction. However, subject to these restrictions and the requirement that exercise of PR must be ‘necessary’ to promote the child’s welfare, the power conferred by s.33(3) on a local authority is not otherwise circumscribed. 

A small open category of cases remain where it is appropriate for issues involving exercise of PR to come before the court but it was emphasised that this is only justified where:

where the consequences of the exercise of a particular act of parental responsibility are so profound or enduring and have such an impact on either the child him or herself, and/or on the Art 8 rights of those other parties who share parental responsibility with a local authority, that it would be wrong for a local authority to use its power …’ 

The court was clear that an application to EUSS or for a passport did not invoke consequences so profound that the court’s approval was needed. The court considered in particular that the application for passport was simply to provide evidence of a child’s identity and nationality, and a grant of immigration status under the EUSS will not prevent the child from returning to their country of origin or, if he or she wishes to, from relinquishing their immigration status in the UK on reaching their majority. 

With regard to the child’s Article 8 rights, the court said this:

…whilst it might be possible to identify some factors that may constitute an interference in those rights, for example the fact that settled status will mean the child will remain in the United Kingdom rather than the country of their birth, with the concomitant effect on their understanding of their identity and on relationships with extended family, with respect to children who are the subject of a care order, the question of whether that interference is proportionate will have been determined in the care proceedings as part of the evaluation of the care plan mandated by statute. 

Discussion was had about cases where those with PR fail to make the necessary applications to EUSS for a child who is not in local authority care, or a child has been lost and abandoned and no one has PR . The court agreed that this highlighted the need for local authorities to remain alive, when discharging their obligations to looked after children for whom they do not share parental responsibility, care leavers and children in need, to the possibility of cases that may, exceptionally, require the intervention of the court. 

The court did have the power to make orders under the inherent jurisdiction but the court was clear this should not be the first port of call and the local authority should first confirm with the Settlement Resolution Centre whether such documents as the child already has available are sufficient for the purposes of the EUSS application. Only if they are not, and no other acceptable documents exist and can be procured, should an application to court for an order under the inherent jurisdiction be contemplated by the local authority. 

Guidance from the Court of Appeal about domestic abuse cases

Neutral Citation Number: [2021] EWCA Civ 448

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

This is a post by Sarah Phillimore. This is a useful judgment setting out comprehensively and clearly the historical evolution of the family court approach to issues of domestic abuse and offering useful pointers for how such cases should be handled. It recognises that every appeal in such cases represents a failure but does not accept wider criticisms of a systemic refusal or inability of the family court system to tackle allegations of abuse. However, the massive, trumpeting elephant in the room remains the tensions between the need to see relationships more of ‘patterns’ than discrete incidents and the inevitability that such investigation will take time that the family court system just doesn’t have.

On the 30th March 2021 the Court of Appeal handed down its judgment in four conjoined appeals. A number of intervenors were involved, including the Association of Lawyers for Children and Families Need Fathers. The first 77 paragraphs deal with some general guidance on two very important issues.

  1. where domestic abuse is alleged in children cases, should the focus be on patterns of behaviour rather than specific incidents?
  2. What extent should the family courts be taking into account concepts which are applicable in criminal proceedings?

The rest of the judgment looks at the individual appeals. While guidance from the Court of Appeal is always welcome, the court recognises at the outset its limitations. Not only are there various initiatives already in train but there is a clear limit to what any court can say about issues which do not strictly arise from the appeals before it.

Domestic Abuse in the Family Courts

This is sadly a common issue. A ‘guesstimate’ is that of the 55,253 ‘private law’ children applications made in 2019/2020, 40% involved allegations of domestic abuse. It is important that the court consider the impact of the abuse on the parents and child and may restrict or even close down, any continuing relationship between the abusive parent and the child. If one parent does not accept the allegations of the other, the family court as a civil court, may conduct a ‘finding of fact hearing’ to determine what did or didn’t happen. The burden of proof is on the person making the allegations and the standard of proof is the ordinary civil standard ‘on the balance of probabilities’ . If the court does not find that an allegation is true then it is treated as if it didn’t happen.

Cases are heard by the 2,744 lay magistrates and 1,582 salaried judges, along with some part time judges. Making decisions in such cases is clearly a significant responsibility – get it wrong and either an abusive parent is allowed free reign to continue abusing, or a blameless parent may lose their relationship with their child. The cases can be very difficult – the evidence is often not clear and may turn on the word of one parent against the other. The decision about having a finding of fact hearing and what allegations it should deal with is clearly very important and needs to be made at an early stage. Not every case will need such a hearing.

Developing understanding of issues around domestic abuse

The family courts approach to issues of domestic abuse have evolved as society’s attitudes have shifted – although some say its far too little and too slowly. But the attitudes of decades ago, where domestic abuse was seen as either trivial or a private matter, are long gone. There have been various shifts in attitude over the years. The Court of Appeal noted the ‘seminal moment’ to the court’s approach to ‘domestic violence’ (as it was still called) was the Court of Appeal judgment in another conjoined hearing of four appeals –  Re L (Contact: Domestic Violence); Re V (Contact: Domestic Violence); Re M (Contact: Domestic Violence); Re H (Contact: Domestic Violence) [2000] 2 FCR 404; [2000] 2 FLR 334. The court heard from expert child psychiatrists who emphasised the need for greater awareness of the existence of and the consequences for children of, exposure to ‘domestic violence’ between parents and other partners.

Further initiatives were developed to improve the ways the courts handling of such cases, one being Family Proceedings Rule 2010: Practice Direction 12J- Child Arrangements and Contact Orders: Domestic Abuse and Harm (‘PD12J’) which was originally implemented in 2008. PD12J sets out a step by step guide over 40 paragraphs about what the court MUST do in cases where there is reason to believe that one party has perpetrated abuse or there is a risk this might happen.

Even wider initiatives are afoot – the Ministry of Justice is moving to implement their report: Assessing Risk of Harm to Children and Parents in Private Law Children Cases: (‘The Harm Panel Report’). At the same time, the Domestic Abuse Bill is before Parliament. In addition the  President of the Family Division’s ‘Private Law Working Group’ (‘PLWG’) punished its second report in April 2020. The Harm Panel Report wishes to implement a more ‘investigative and problem solving’ approach to domestic abuse in the courts, rather than allow the current adversarial system to continue – pilots of Integrated Domestic Abuse Courts (IDAC) are being designed. The success or otherwise of such initiatives are clearly beyond the scope of any court judgment to examine, so the Court of Appeal restricted itself to general guidance about the current court processes.

General guidance relating to the current court process

The number of appeals against decisions in these cases are low but the Court of Appeal warns against complacency. When the stakes are so high, even a small amount of cases going wrong can cause deep unease and the public rightly seek to hold the Family Justice System to account when it fails.

While I take on board the significant developments in improved practice and procedure over the last 50 years, there is an immediate and angry elephant in the room which this appeal hearing illustrated starkly. Legal aid was removed in 2012 from private law cases, unless a ‘domestic violence’ exemption can be proven. That meant each of the mothers/appellants had the benefit of public funding whereas each father had to find solicitors and barristers willing to work for free. The Court of Appeal was of course grateful that this was done, but no court system can run on gratitude. There ought to be ‘equality of arms’ in these proceedings.

Increased awareness of ‘patterns of behaviour’.

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 issue was whether the Judges ‘on the ground’ were properly implementing PD12J. Just before the Court of Appeal hearing in January 2021, Mr Justice Hayden handed down judgment in F v M [2021] EWFC 4 in a case that involved a 2 week finding of fact hearing on allegations that centred on coercive or controlling behaviour. All the parties praised this judgment for its ‘comprehensive and lucid analysis’ and agreed with the plea within it urging greater prominence to be given to coercive and controlling behaviour in the Family Court which would involve more training. The judgment was considered ‘essential’ reading for the judiciary and also highlighted paragraph 60 of the statutory guidance published by the Home Office pursuant to Section 77 (1) of the Serious Crime Act 2015 which identified paradigm behaviours of controlling and coercive behaviour. I haven’t read that and now will, so I guess my ‘awareness’ has been usefully raised.

The Court of Appeal noted that it was also necessary to be clear what was NOT sufficiently bad behaviour to count as coercive or controlling

It is equally important to be clear that not all directive, assertive, stubborn or selfish behaviour, will be ‘abuse’ in the context of proceedings concerning the welfare of a child; much will turn on the intention of the perpetrator of the alleged abuse and on the harmful impact of the behaviour. We would endorse the approach taken by Peter Jackson LJ in Re L (Relocation: Second Appeal) [2017] EWCA Civ 2121 (paragraph 61):“Few relationships lack instances of bad behaviour on the part of one or both parties at some time and it is a rare family case that does not contain complaints by one party against the other, and often complaints are made by both. Yet not all such behaviour will amount to ‘domestic abuse’, where ‘coercive behaviour’ is defined as behaviour that is ‘used to harm, punish, or frighten the victim…’ and ‘controlling behaviour’ as behaviour ‘designed to make a person subordinate…’ In cases where the alleged behaviour does not have this character it is likely to be unnecessary and disproportionate for detailed findings of fact to be made about the complaints; indeed, in such cases it will not be in the interests of the child or of justice for the court to allow itself to become another battleground for adult conflict.

What should the court do?

Once allegations of abuse are raised, the Court of Appeal identified four important questions to guide the court’s approach:

  1. Whether there should be a finding of fact hearing – there is detailed guidance in PD12J about this.
  2. The challenges presented by Scott Schedules as a means of pleading a case;
  3. If a fact-finding hearing is necessary and proportionate, how should an allegation of domestic abuse be approached?
  4. The relevance of criminal law concepts.

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

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

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

This immediately ushers in yet another angry elephants. I have never had a finding of fact hearing longer than five days in a domestic abuse case, and that was very rare. We are usually lucky if we can squeeze a handful of days out of court listing. Of course, restricting allegations to your ‘top six’ or ‘best 10’ do not enable proper investigation into coercive patterns of behaviour over many years – but unless the numbers of salaried judges expand dramatically, its difficult to see how two week findings of fact (or even two days) are going to become achievable within any realistic time frame. Therefore I am afraid I retain my usual bad tempered scepticism about the magic wand of ‘training’ . I am tolerably aware of coercive and controlling behaviour. But we need actual court time to conduct a proper hearing about such cases; they are unlikely to be able to slot into a day or two.

The Court of Appeal at para 54 did however echo my concerns

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

And noted this was an important question which the Court of Appeal could not answer

How to meet the need to evaluate the existence, or otherwise, of a pattern of coercive and/or controlling behaviour without significantly increasing the scale and length of private law proceedings is therefore a most important, and not altogether straight- forward, question. It is a matter that will require consideration by others involved in working through the implications of the MOJ Harm Panel report, in implementing the Domestic Abuse Act and in any subsequent revision of revising PD12J as part of those two processes. The President will refer the anonymised skeleton arguments in these appeals to Mrs Justice Knowles (the lead judge on issues of domestic abuse) and to Mr Justice Cobb (the lead judge on private law matters) for consideration as part of that review.

Trying to spin the plates

In order to grapple with the clear tension between a fair investigation of what has actually happened in the parties relationship against the need to keep control over the length of court hearings, its clear that case management is the key. The court summarised the approach to fact findings:

  1. consider the nature of the allegations and the extent to which they will be relevant to making order about children.
  2. Keep in mind that the purpose of a finding of fact is to provide the basis for a risk assessment
  3. Carefully consider if its ‘necessary’ or whether there is other evidence that provides a sufficient factual basis to proceed.
  4. Does the fact finding need to be a separate hearing, or can it be bundled up with the final hearing?

CAFCASS made the very sensible suggestion that it would help to have more input from their officers at an earlier stage to help answer these questions and the Court of Appeal agreed this was a good idea worthy of more consideration.

Everyone agreed that Scott Schedules were useless and risked giving a false picture of what was happening in a relationship. The Court of Appeal agreed with the comments of Ms Mills QC on behalf of the second interveners, (‘Women’s Aid’, ‘Rights for Women’, ‘Rape Crisis England and Wales’ and ‘Welsh Women’s Aid’), who submitted that ‘the overwhelming majority of domestic abuse (particularly abuse perpetrated by men against women) is underpinned by coercive control and it is the overarching issue that ought to be tried first by the court. It is clear that the family court needed to move away from picking ‘your best 10’ allegations but considerations of how we move forward are limited to noting some suggestions at this time.

A number of suggestions were made by the parties in submissions including; a ‘threshold’ type document, similar to that used in public law proceedings, formal pleadings by way of particulars of claim as seen in civil proceedings and a narrative statement in prescribed form. The particular advantage of a narrative statement was, it was submitted, that it would allow there to be a focus on the overall nature of the relationship and expressly whether a party says that she had been harmed as a result of the behaviour and, if so, in what manner. Such an approach would allow the court to identify at an early stage whether an allegation of controlling and coercive behaviour is in issue. Identifying the form of harm (which may be psychological) and only then looking back at the more granular detail, would, it was submitted, allow the court to determine what specific facts need to be determined at a fact-finding hearing.

This all sounds very sensible and I hope we will see it translated into a Practice Direction soon.

The court offered the following ‘pointers’

PD12J is focused on child arrangement orders – it does not establish a free-standing jurisdiction to determine domestic abuse allegations that are not relevant to child welfare issues.

Fact finding hearings are to provide a factual basis for assessments or orders/interventions

Only allegations that are necessary for assessment purposes or particular orders should be considered

In every case where domestic abuse is alleged, both parents should be asked to describe in short terms (either in a written statement or orally at a preliminary hearing) the overall experience of being in a relationship with each other (this is an excellent idea!)

Where one or both parents assert that a pattern of coercive and/or controlling behaviour existed, and a fact-finding is necessary, that assertion should be the primary issue for determination at the fact- finding hearing. Any other, more specific, factual allegations should be selected for trial because of their potential probative relevance to the alleged pattern of behaviour, and not otherwise, unless any particular factual allegation is so serious that it justifies determination irrespective of any alleged pattern of coercive and/or controlling behaviour (a likely example being an allegation of rape).

The relevance of criminal law concepts

With regard to the last point about rape being justified as necessary allegation to determine, I maintain my concern that allegations of rape are for the criminal courts to be decided on the criminal standard of proof. The Court of Appeal said:

When considering domestic abuse, it will not infrequently be the case that the alleged behaviour will be such that it is capable both of being the subject of prosecution as an offence before the criminal courts and being the focus of consideration in the family courts as justification for the implementation of protective measures. The criminal law has developed a sophisticated and structured approach to the analysis of evidence of behaviour, to enable the criminal court to determine whether the guilt of the alleged offender has been proved to the requisite high standard. This raises the question of the degree to which the Family Court, if at all, should have regard to and deploy criminal law concepts in its own evaluation of the same or similar behaviour in the different context of Family proceedings.

The question was answered simply – it is not appropriate to use criminal law concepts in family proceedings. The two systems are fundamentally different with different aims and different standards of proof – criminal law concepts, such as the elements needed to establish guilt of a particular crime or a defence, have neither relevance nor function within a process of fact-finding in the Family Court.

The Court of Appeal commented that the authoritative statement of the law in this regard is that which is found in the judgments of McFarlane and Hickinbottom LJJ in Re R.

But I accept what the Court of Appeal says about allegations on rape in the family courts – perhaps the problem is me getting too caught up in criminal law concepts here.

Behaviour which falls short of establishing ‘rape’, for example, may nevertheless be profoundly abusive and should certainly not be ignored or met with a finding akin to ‘not guilty’ in the family context. For example in the context of the Family Court considering whether there has been a pattern of abusive behaviour, the border line as between ‘consent’ and ‘submission’ may be less significant than it would be in the criminal trial of an allegation of rape or sexual assault.

Will those who see the family courts as a misogynistic tool of oppression welcome this judgment ?

This judgment is I suspect, not going to be welcomed happily by those who would have accepted nothing less than the collective family court system falling on a massive sword and accepting its inability to recognise or deal with domestic abuse cases. The Court of Appeal rejected any suggestion that the family court system has yet to be dragged into the ‘modern approach’ but warned judges who fail to properly direct their minds:

We are confident that the modern approach that we have described is already well understood and has become embedded through training and experience in the practice of the vast majority of judges and magistrates sitting in the Family Court. Where however an issue properly arises as to whether there has been a pattern of coercive and/or controlling abusive behaviour within a family, and the determination of that issue is likely to be relevant to the assessment of the risk of future harm, a judge who fails expressly to consider the issue may be held on appeal to have fallen into error.

3 of the 4 appeals succeeded. The decisions were made on long-established principles of fairness. They do not establish any ‘new law’ nor any binding precedent. I will therefore not discuss them here, but as ever it is instructive to read and consider what went wrong and how we might avoid repeating such mistakes in future cases. Every appeal of a family court judgement represents a failure, represents avoidable pain and misery caused to adults and children. But the fact that a small percentage of judgments need to be appealed, does not mean the whole system is rotten. Any system requiring input from humans will fail at times. We have to do the best to limit those failures; it is magical thinking to expect them to be avoided entirely.

While the Court of Appeal welcomed and described the further training for Judges, such as a now mandatory free standing sexual assault awareness training programme, it did not accept that the failures under their current investigation are indicative of a systemic failure to appreciate the nature and significance of domestic abuse.

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Consent to Gender Affirming Treatment AB v CD & Ors [2021] EWHC 741 (Fam) (26 March 2021)

The ruling in Bell v Tavistock, on 1st December 2020 was that children under 16 were unlikely to be able to consent to taking puberty blockers and cross sex hormones and that these cases should be brought before the court for a decision. In response The Good Law Project launched it’s ‘Trans Defence Fund’ to bring legal action to challenge this ruling. Today, March 26th we have the first results. Was it worth the money?

SUMMARY: TLDR

I have added this part after having some very useful discussions via social media and attempting to refine my points in an accessible summary. Although social media is largely responsible for the toxic mess we are now in, ironically it continues to afford me access to people and views I might otherwise never get to see – so for that I am grateful. I will summarise my views below, highlight some of the particular points of controversy or difficulty and then offer a neutral precis of the decision itself.

For a very specific cohort of children, such as XY who had already started on PB and wanted to continue, I can see that it was worth exploring these issues for them. As far as I can make out from the judgment, its dealing with the very narrow point of how to reassure GPs already prescribing PBs that it is lawful for them to continue. This judgment makes it clear that parents can consent to this, provided the child wants it to go ahead. This scenario was not covered in Bell as the Tavistock were clear they would never authorise treatment for a child without being satisfied about the child’s consent.

If you are interested in a more general overview of children’s capacity to consent, I deal with it in this post.

But the court did not know if XY was Gillick competent. No independent assessment of XY’s views was carried out. It’s difficult to see what role CAFCASS were playing here. Keira Bell’s lawyers were not invited to intervene. The case carried on with all parties apparently aligned in what they wanted, as court explicitly noted. I think it would have been far better to have simply made a very discrete ruling here that applied to XY alone. I appreciate that on what we know about XY that this child appears to have been consistent and persistent in gender dysphoria and the parents were not rushing into treatment.

But what we have instead is a ruling that goes beyond the individual case and makes general comments about parental consent which do seem to undermine Bell, despite explicit assertion that nothing in this judgment changes Bell. And I think the problem is this – comments are made about the centrality and importance of parental rights to make decisions, with which I agree. But the context in which those decisions are being made is one of extreme polarised positions, lack of proper evidence and very serious long term consequences for a child. That is the elephant in the room. Parents can be ‘loving’ and do all the research they wish – but if the tree is poisoned, so is its fruit. Also the court is silent to the troubling concern highlighted by a number of Tavistock clinicians, that some parents appeared to be motivated to seek treatment because they did not want to raise a gay child.

These are the issues that urgently need attention. We can all, even parents, do terrible things in the name of ‘love’. I agree that the court is not the best arena for all of this. But while necessary discussion remains censored on the grounds of ‘transphobia’, even within the medical profession, then the courts are all we have.

PARTICULARY CONCERNING EDIT 28th March 2021

I had not realised until discussions with a parent via Twitter this morning, that parents had been refused permission to intervene in the Court of Appeal decision on the issue of parental consent. Given that the Tavistock had said – quite rightly – it could conceive of no circumstances in which it would proceed without the child’s consent, presumably that issue was felt to be irrelevant. We now know that isn’t true. And that the parents can apparently give consent – across the board? – as long as the child doesn’t explicitly object. A silent child will be assumed to be simply an ‘overwhelmed’ child who wants mum and dad to make the hard decisions. All of this is given the narrative of ‘loving parents’ – so presumably those parents who don’t consent are ‘unloving’ and hence abusive. There was no discussion in this judgment about the concerns of Tavistock clinicians about those parents – many – who were expressing homophobia as a motivation for their child’s transition. No mention that Sonia Appleby is taking the Tavistock to court for their failure to refer children to her as former head of safeguarding. No more than a few paragraphs at the peculiar atmosphere now enveloping us all – whereby even mild criticism or challenge to the ‘path of affirmation’ is met with cries of ‘transphobia’ or even (I am not joking) ‘genocide’. We are really in a very serious mess. The Court of Appeal will have much work to do.

Some particular points of difficulty

I am not sure that this decision represents the victory that the Good Law Project appear to be celebrating or the coherent decision that we all need. In no particular order of importance, these are the issues that immediately caught my eye.

  • It is clear that the court wanted to be firm that the judgment in Bell remains undisturbed. But I still don’t feel confident I understand how these two judgments sit together.
  • The court raised an eyebrow at the process whereby XY (a child aged then 13) was sufficient to explore If XY was really Gillick competent to consent
  • The court noted that the safeguards provided by a regulatory framework had to be real – and that at no time had the respondents ever sought court approval despite the ‘intense difficulties’ of these kind of cases. The fact that the Tavistock’s previous head of safeguarding is also taking them to court was not touched upon in this judgment but presumably is very relevant to the extent to which we can trust the regulatory framework in place. It is clear from the court’s closing remarks that they thought the difficult issues around PBs are better left to a regulatory and academic setting, not litigation. Which is all well and good – provided we can be confident that neither setting has been ‘captured’ to a greater or lesser extent by any prevailing ideology. The court does touch on the dangers here, by commenting that parents may find it difficult to access an independent ‘second opinion’ but is clearly wary of that process being lead by the courts rather than the regulatory framework itself.
  • when determining that there is no ‘special category’ of cases regarding medical treatment that must come before the court, its interesting that the line of authorities around deprivation of liberty were not discussed. When considering a DoL, iit is clear that parents may not consent to deprive a child of their liberty once the child is old enough to be beyond the ‘zone of parental authority’ which is certainly by 16 years, even if the child lacks mental capacity to consent to such deprivation.
  • Although the court commented that cases where the clinicians disagree should come to court, it was silent as to whether the same applied when parents disagree – I assume that it must but it would be good to see this set out, rather than the assumption (as clearly exists in Canada!) that a parent who does not support this treatment must nevertheless be compelled to affirm it.
  • It’s interesting that the only cases that seemed to come close to a ‘special category’ which must always come to court were cases involving the sterilisation of young children. As this is exactly what PB and CSH lead to, I would have hoped to see a little more discussion of that comparison.
  • The court commented on the ‘research’ done by the mother and the frequent consultations between staff and parents. But if PB are the ‘experimental’ treatment that Bell found, and if the evidence to support the treatment is as poor as Bell found – then what is the point of such extensive research and clinical consultation? Zero plus zero is still zero.
  • At some point the divergence between the Australian approach and English approach will have to be resolved. What exactly is the evidence that allows the Australian courts to confidently assert that both PB and CSH are ‘therapeutic’ treatment, and thus viewed more sympathetically by the court?
  • If XY at 13 would be highly unlikely to be able to provide valid consent – as Bell held – why was the court now prepared to proceed on the basis that parental consent was ok? Either the child’s consent is necessary and important or it isn’t. It seems odd to make a distinction between a child who has started and not started treatment. If the consent isn’t valid, the treatment isn’t lawful, no matter how far down the line you have gone. I can see a potential difference in levels of distress for a child who has to stop in the middle of treatment, but that’s the only distinction I can see.

Live issues which may require further consideration by the Court of Appeal was the argument raised that considering this kind of treatment differently could be discrimination under the Equality Act. The Court did not feel that it should deal with this issue in this case, but it may merit resolution in the Court of Appeal. I also hope the Court of Appeal will finally knock on the head the continuing and irritating assertion from the Good Law Project that the decision in Bell is somehow an ‘attack’ on Gillick competence. This is simply untrue. It is also perplexing that the Good Law Project appears on the one hand to place great stock in Gillick, while on the other it argues for ‘loving parents’ to be able to offer consent on behalf of children. That position appears to me at least to be incoherent, if not utterly inconsistent. We shall see what the Court of Appeal makes of it all.

This judgment however only makes sense if it is restricted to that specific cohort of children who have already started taking PB and wish to continue and their parents and doctors agree but require clarity as to who is actually giving consent so that GPs outside the framework of NHS England can have the confidence to lawfully prescribe.

Background to the application

The application was bought by parents of the child XY to seek a declaration that they could consent to XY taking puberty blockers and that this decision should not come before the court as either a matter of legal requirement or good practice. The respondents were the Tavistock and Portman NHS Trust and the University College London Hospital NHS Trust. CAFCASS also appeared to assist the court.

After the judgment in Bell, NHS England amended the Service Specification for GIDS so that every patient currently receiving treatment should be assessed and a ‘best interests’ application made to the court if the review determined that PBs should continue. It was clear that it would take a considerable time to carry out these reviews; at least 3 months for XY. The clinicians, parents and XY were all of the view that XY should continue treatment and it should not stop pending review as that would lead to XY developing irreversible secondary sex characteristics which XY did not want and would find very distressing.

The background to the services provided at GIDS were all set out in judgment in Bell. No one wanted the court to adjourn to wait for the Court of Appeal decision in that case (hopefully by June 2021). What is different in this case is that Bell explicitly did not deal with the issue of whether or not parents could consent to such treatment continuing when it had already started.

After Bell some GPs agreed to continue to prescribe PBs as they are not parties to the contract between NHSE and the NHS Trusts. But it was not clear whose consent was being relied upon to make the prescription of PBs by GPs lawful post Bell. In light of that uncertainty, XY’s mother applied to court.

Therefore, the court was concerned with a specific cohort of children – those who are currently receiving treatment with PBs. It was argued that these children would suffer if treatment did not continue – therefore it should continue on the basis of parental consent alone, as long as the patient continues to want the treatment.

Everyone agreed the court was bound by the findings in Bell, most relevantly here the treatment’s “experimental nature, the issues around reversibility, and the lifelong and life-changing nature of the treatment pathway that the child has entered upon“. Indeed it would have been very odd if anything else had been said given that Mrs Justice Lieven who delivered this judgment was one of the three judges deciding Bell.

The court was very clear that:

Nothing that is said below is intended to depart, to even the smallest extent, from anything that was said in Bell.

Kiera Bell’s lawyers had asked to be kept informed about this application but the court did not order this at an earlier stage. Clearly the case involved very personal details about a child and the court wished to limit the involvement of third parties. The court further rejected a suggestion that a ‘best interest’ analysis should be carried out for XY IF the court found parents could not consent – there was no independent evidence from CAFCASS who had not been invited to act as XY’s guardian.

Who is XY?

XY was born a boy and is now aged 15. XY ‘came out’ as transgender aged 10. When attempting to conform to a ‘male’ stereotype, XY became ‘utterly miserable’ and ‘very withdrawn’. XY does not have unresolved mental health issues and is not on the Autistic Spectrum. XY was referred to GIDS in 2016. The parents wanted to wait before starting PBs until puberty commenced and the mother carried out ‘extensive research’ before hand. XY was seen in April 2019 aged 13 where XY was declared ‘competent to consent’. The court raised some concern that the form offered to XY to sign did not test if the child understood the issues set out at para 138 of Bell, but made no further comment about how this process tested out Gillick competence. XY then started PB in July 2019. XY did not want to consider any fertility preservation treatment as stopping PBs would entail developing male secondary sex characteristics which XY would find ‘devastating’. The court set out the number of appointments the parents had to discuss XY’s treatment.

The questions for the court

  1. Do the parents retain a legal right to consent to the treatment?
  2. Is it the kind of treatment where an application must be made to the court, or should be made to the court as a matter of good practice?

The court noted that the role of parents in making decisions about their children’s lives was ‘central, fundamental and critical’. Parental responsibility clearly extends to granting consent to medical treatment. In the vast majority of situations, the courts should respect and uphold the decisions parents make. The court referred to a number of authorities, as well as article 5 of the UNCRC and article 8 of the ECHR.

Do the parents retain a legal right to consent – yes.

The issue here was whether the parents had a continuing right to consent even if XY was Gillick competent. The court in Bell set out at myriad issues a child would need to grapple with to be deemed competent to consent to this treatment. There had been no fresh assessment of XY’s competence. Therefore the court considered the case on the two alternatives – whether XY is or is not Gillick competent. But it remained relevant if the parents could also give operative consent as the clinicians, GPs and parents were very uncertain as to the current lawful basis on which PB’s can continue to be prescribed. So the court needed to examine the degree to which the parental right to consent to treatment continued even when the child was Gillick competent.

The court rejected a suggestion that a parent retains the right to consent to treatment which a Gillick competent child has refused. This is simply unsustainable when looking at article 8 ECHR. The parent has a ‘dwindling right’ to consent on behalf of a child whose autonomy increases in line with their age and understanding.

In this case, the parents and child agreed. So, does the parent’s ability to consent disappear once the child achieves Gillick competence? The court decided it did not. The parent cannot ‘trump’ a child’s decision but if the child fails to make a decision, then the parent’s ability to do so continues. An obvious example of where a parent has a continuing duty to make decisions, is if the child is unconscious. But it could also arise if a child declines to make a decision as the situation is too overwhelming and she would rather her parents decided.

Therefore, if XY was Gillick competent, XY did not object to the parents making the decision to carry on with the PB. If XY was NOT Gillick competent, the parents could consent on XY’s behalf. Such an approach protects the rights of both the child and the parents.

Is PB a special category of treatment which must come before the court? – NO

In essence, cases should come to court if there was disagreement between clinicians (or presumably parents?) or there was evidence that a child was pressuring parents into making a decision.

The court was not troubled by the distinction between ‘legal requirement’ or ‘good practice’ – if a doctor failed to have regard to good practice then he or she risks considerable criticism so the impact of the two is similar. But if such a ‘special category’ of treatment exists it is extremely limited. Cases which have considered this have looked at the issue of sterilisation of girls, some under 16. The request of a mother to sterilise her 11 year old girl who had ‘impairment of mental function’ and ‘certain aggressive tendencies’ was treated with great concern in Re D (A Minor) (Wardship Sterilisation) [1976] 1 All ER 326 and the court certainly wished there to ‘throw some care around this child’ given that sterilisation involved the deprivation of a basic human right. The case of F v West Berkshire Health Authority [1990] 2 AC 1 set out six factors to assist a decision about whether or not a case should come to court, including the irreversibility of the decision and the extent to which it involved a fundamental human right.

However, as the court noted, this case involved an adult without capacity and not a child with parents who were capable of and entitled to exercise PR. Further authorities were examined which explored the distinction between ‘therapeutic’ and ‘non therapeutic’ treatment.

In January 2020, Mr Justice Hayden, Vice President of the Court of Protection, produced guidance as to when applications for medical treatment should be made to the court, for example those cases that were finely balanced, or involved disagreement between the parties.

Arguments were made about the extent to which parents can give consent even to experimental treatment but the court did not find the case law advanced particularly helpful – if a child has a condition that would otherwise be fatal then its easy to see that experimental treatment would generally not require Court approval. But the factual, clinical and ethical issues surrounding PBs are different. The child is not facing a terminal illness and the treatment has life-changing and life-long consequences, the implications of which are not fully understood.

Interestingly the court commented upon some of the Australian authorities which deemed even CSH ‘therapeutic treatment’ but noted that this approach was very different to Bell.

The Respondents relied on the ‘extensive regulatory and oversight framework’ within which the clinical decision to prescribe PBs are made and that this broad framework was the more appropriate mechanism to ensure best practice and child safeguarding, rather than placing PBs into a special category which requires Court authorisation and thus removes the power of parents to consent. The court agreed that the framework gave ‘the opportunity’ for significant safeguards to be put in place and noted also that the Cass Review is reporting this year. Further, the Tavistock and UCL are subject to regulatory oversight by the Care Quality Commission (CQC) which reported regarding GIDS and set out various improvements it needed to make. Further, all the clinical professionals are subject to regulation and oversight by their own professional bodies.

The court did note that the safeguards did not appear to have worked ‘on the ground’ given that despite the ‘intensely difficult issues’ raised, the Tavistock had never felt it necessary to apply to the court for the approval of the prescription of PBs, even when the children were below the age of 16. There was clearly a risk of ‘unanimity of view’ within the clinical group that would mean referrals were never made.

The analysis of the case law showed that in terms of a ‘special category’ of cases that must come before the court, only the ‘non -therapeutic’ sterilisation of a child seemed to come close. Other cases that came before the court were fact specific – where there is clinical disagreement or possible alternative treatments.

The court concluded

It might be argued that in the light of the Divisional Court’s analysis in Bell, PBs are sufficiently different from other forms of treatment to be treated differently. I accept that I am somewhat hampered by the fact that no party was putting this argument. The factors from Bell which would be relied upon in this regard would, I assume, be the poor evidence base for PBs; the lack of full and long term testing; the fact their use is highly controversial, including within the medical community; and the lifelong and life-changing consequences of the treatment, which in some ways are irreversible. The ratio of Bell is that a child is very unlikely to be in a position to understand and weigh up these factors.

However, the key difference from Bell is that parents are, in general, in a position to understand and weigh up these matters and consider what is in the long and short term best interests of their child. They are adults with full capacity and as the people who know their child best, and care for them the most, will be in a position to reach a fully informed decision. The evidence strongly suggests that XY’s parents have fully considered these matters and come to a careful and informed decision.

In my view, the factors identified in Bell, which I fully agree with, do not justify removing the parental right to consent. The gravity of the decision to consent to PBs is very great, but it is no more enormous than consenting to a child being allowed to die. Equally, the essentially experimental nature of PBs should give any parent pause for thought, but parents can and do routinely consent on their child’s behalf to experimental treatment, sometimes with considerable, including life-changing, potential side-effects. It is apparent from Bell that PBs raise unique ethical issues. However, adopting Lady Black in NHS v Y, I am wary of the Court becoming too involved in highly complex moral and ethical issues on a generalised, rather than case specific, basis.

The court went on to note two points of ‘particular concern’ around parents giving consent for PBs for children with Gender Dysphoria. This raises ‘unique and highly controversial ethical issues’ and the division has become ‘highly polarised’. Therefore there isa real risk that clinical disagreement and difference will not necessarily be fully exposed and the early adoption of ‘fixed positions’ may deny parents access to a truly independent opinion. However, again the court stressed that this was a matter for the various regulatory bodies when imposing standards and good practice. The second concern was that of ‘reverse pressure’ where a child is desperate to have PBs and it may be hard for the parents to refuse given the inevitable tensions that would then arise in a family setting.

Conclusion

I have a great deal of sympathy for the court in wanting to bat this back to the ‘regulatory frameworks’. But we have to have faith that the regulatory frameworks will do what they are supposed to do, to protect everyone involved in this process, but of course and most particularly the children who are going to have to live with the consequences. It maybe that the Cass Review will help to break down the enormous harm that has been done by the unquestioning adoption of ‘affirmation’ . However, given the moves to make ‘conversion therapy’ (i.e. talking to a child about their gender identity distress) unlawful, I am not wholly confident that we are out of the woods yet, or certainly that we are out of the court arena. But let’s see what the Court of Appeal says in June.

Publication of the President’s Public Law Working Group report

This is a post by Sarah Phillimore

On 1st March 2021 the President of the Family Division, Sir Andrew McFarlane, welcomed and endorsed the publication of the President’s Public Law Working Group (PLWG) report.

There are four further Best Practice Guidances

The application and case management

Support for work with families prior to proceedings

Section 20/section 76 accommodation

Special guardianship orders

This group was formed prior to the COVID pandemic to investigate the steep rise in public law cases and make recommendations to improve the system.

The President noted that the recommendations had come about ‘organically’ and by agreement which suggests that they are ‘both sound and necessary’. It was his ‘earnest hope and confident expectation’ that the recommendations would therefore but welcomed and put into effect by social workers, lawyers, judges, magistrates and court staff across England and Wales.

It is interesting to see the juxtaposition of ‘an earnest hope’ and a ‘confident expectation’. One does not sit easily with the other. It is also interesting to recall that the Norgrove Family Justice Review was only 10 years ago.

We found general agreement with our diagnosis: a system that is not a system, characterised by mutual distrust and a lack of leadership, by incoherence and without solid evidence based knowledge about how it really works. The consequence for children is unconscionable delay that has continued to increase since we began our work. The average care case in county courts now takes over 60 weeks and many take much longer – an age in the life of a child.

This lead to the Children And Families Act 2014 which endeavoured to speed up care cases by permitting only 26 weeks from application to final order and requiring that experts are appointed only when ‘necessary’.

So what has gone wrong? Why only 10 years later do we have another comprehensive review? The problem appears to be twofold; the steep rise in the number of public law cases and the worrying evidence of significant regional variations that led some researchers to conclude, for example when looking at variations in numbers of Special Guardian orders, that “court and local authority cultures are more important than the perceived riskiness of the placement”.

The former President said this about excessive workloads in 2018:

My view now is that the system, that is each of the professional human beings that I have just listed, is attempting to work at, and often well beyond, capacity. As one designated family judge said to me recently, the workload and the pressure are “remorseless and relentless”. I am genuinely concerned about the long-term wellbeing of all those who are over-working at this high and unsustainable level. Some have predicted that, if the current situation continues, the family justice system will “collapse” or “fall over”, but, as I have said before, I do not think systems collapse in these circumstances. Systems simply grind on; it is people who may “collapse” or “fall over”. Indeed, that is already happening and I could give you real examples of this happening now. 

47 core recommendations

There are 47 ‘core recommendations’. My vague plans to spend an hour or so going through the report thus withered and died on the vine. This weekend alone I will have to:

  • draft a case summary and order
  • Revise a schedule of allegations
  • Check I have everything I need in the electronic bundle for another hearing
  • deal with the emails that I received during an afternoon remote hearing

This is a light weekend. I hope to get all that done in 8 hours. If I was facing a contested hearing next week then I would be looking at closer to 12 hours work. So I gave myself 2 hours to write this. Excuse me if I am bad tempered. I do not know when I will find the time to read through this report with the care it deserves. I comment now on some key issues that jumped out at me. I do not do this in a spirit of cynicism or lack of respect for the hard work that has gone into this endeavour. However I can see immediately three key problems here:

  • Recommendations which sound good – but what do they mean?
  • Recommendations which sound good but which depend on a workforce with time to think about them.
  • Recommendations we have heard before

And WHY the use of roman numerals? Seriously why? this is utterly exasperating in a report that recommends less reliance on jargon and clear explanations for parents.

Recommendations that sound good – but what do they mean?

Para 124 of the Norgove review stated: Children and young people should be given the opportunity to have their voices heard in cases that are about them, where they wish it. Para 23(ii) of the PLWG states “ensure the voice of the child is at the centre of collective thinking”. What does this mean? In cases involving pre verbal babies and toddlers, what am I expected to do to make their ‘voice’ heard, what is ‘collective thinking’ and when is this to take place?

xxxix. the promotion nationally of consistency of outcomes – the report recognises that this is going to need some more work. But what does it mean? If every case is fact specific, as the report states, how is this ‘consistency’ to be measured and tracked? Given that the reasons for stark regional variations are not fully understood how will this be promoted?

Recommendations that sound good but depend on a workforce with time to think about them

xxix. renewed emphasis on effective IRHs

xxxvi. a shift in focus on bundles: identifying what is necessary

xxxvii. fact-finding hearings: only focus on what is necessary to be determined

xxxviii. additional hearings: only where necessary.

That word ‘necessary’ is a weasel word. Just like ‘abuse’ or ‘best interests’ it can expand and contract depending on the desires of who is using it at any given time. But one thing I know for sure – in order to make a good argument about what is or is not ‘necessary’ you must have time to know your case, know the issues, know the options. Do we have that time? I do not think we do. And when you do not have time to spend at least a couple of hours carefully analysing your case before each hearing, it is difficult to be ruthless about what the core issues are. The temptation is to chuck everything in and sort it out later, rather than risk not grappling with an issue which may turn out to be pivotal down the line.

Recommendations we have heard before

xxxii. experts: a reduction in their use and a renewed focus on “necessity”

xxxiii. experts: a shift in culture and a renewed focus on social workers and CGs;

xxviii. renewed emphasis on judicial continuity

When I was starting out I remember writing an article in 2001 which commented on the over-reliance on experts. I mused that this was probably due to the desire of many of us, who lack the time to be confident that we are making sound decisions, to ‘outsource’ that decision making process to someone else – who can then be blamed if it all goes horribly wrong. But its also due to the fact that many parents in care proceedings will suffer horribly from their own child hood trauma, leaving them with unresolved mental health issues that utterly blight their parenting prospects and will continue to blight them, absent some expensive and lengthy therapy which of course will never be provided because no one will pay for it. We will be circling this wagon indefinitely and will confidently assert that in the next round of reviews, reports and best practice guidance we will still be referring to this.

Judicial continuity – I am confident that many of the problems which drag the system down could be made much better if only we had judicial continuity. If we were able to bring urgent applications to a Judge who knew the case. If the Judge could work collaboratively with the advocates to move things along, rather than hearing things afresh at each hearing. Apparently there may be some more money being found for more judges but this has been on the wish list constantly since I started out, 20 years ago.

There is so much more that needs to be said

But I am frankly over whelmed by the sheer weight of all these recommendations and best practice guidances. It is ironic to think that the time I will need to spend reading about what my best practice must be, is time that will not be spent actually practicing better. I hope that this blog post will operate as a spur to me at least, to go back and read with some more thought and care.

But I find myself reluctant and resistant for this reason. Any system that requires frequent reviews and recommendations, when the ‘core’ recommendations number 47 and are accompanied by 4 separate ‘best practice’ guidances, is a system which is perhaps distracting itself from the key problems.

What many of the children I deal with need is not a pious exhortation that ‘their voice and lived experience’ will be central to our ‘collective thinking’. Rather they need urgent mental health intervention and safe accommodation and they need it NOW. Or they are babies about to be removed from their mothers in hospital and there are no mother and baby placements available, none at all. Or they are the children of parents with learning disabilities and there is no support available to support the parents to care for them.

I have made these points many times before in many different environments. Fundamentally I think the problem is this. We don’t live in a society that cares about children, other than as future economic actors. The rise in care proceedings shows this. Because if we really cared about children, wouldn’t we do more to prevent their parents sliding out of view?

EDIT March 9th 2021

I attended today the remote webinar introducing the key themes, recommendations and plans for implementation of the report and I am happy to say I feel more energised and positive now after the key note speeches of the President and Mr Justice Keehan. Please see these comments on the speeches.

https://threadreaderapp.com/thread/1369234969290227716.html

Depriving Children of their Liberty

This is the text of a talk I gave for White Paper Conferences in February 2021 looking at the unresolved issues, both legal and practical, around deprivation of liberty orders for children of all ages.

The importance of freedom of movement.

Your freedom to come and go as you wish is very important and has been a protected right for centuries. From the ancient common law remedy of ‘habeus corpus’ we now look to Article 5 of the ECHR  – everyone has the right to liberty and security of person. Being deprived of your liberty can only be lawful:

  • if you consent to it, or someone else is allowed to consent on your behalf, or
  • there is an existing legal framework that allows it, or
  • you apply to the court for a declaration that its lawful. 

Deprivation of liberty means that someone is under continuous supervision and control and is not permitted to leave. It doesn’t make any difference if the conditions are pleasant or necessary. It is defined by using the criteria set out in the case of Storck v Germany 43 EHRR 96, as confirmed in 2014 in the case of  Cheshire West and Chester Council v P [2014] UKSC 19, [2014] MHLO 16

  • Confinement in a particular restricted place for more than a short period of time
  • lack of valid consent
  • attribution of responsibility to the State.

An obvious example of lawful deprivation of liberty is sending someone to prison after conviction of a criminal offence. 

The current legal situation regarding depriving children of their liberty is a complex mixture of common law, the inherent jurisdiction, statute and European law. Although a child is defined as a person between 0-18, children aged 16 and over are treated differently to younger children. There is also a forthcoming Supreme Court decision on the use of the inherent jurisdiction, which is discussed below. 

We need to look carefully at the reasons behind any decision to restrict a child’s liberty in order to identify the correct route to ensure that any detention is lawful. Sadly for family practitioners, The Children Act 1989 does not specifically address mental disorder, does not provide specific powers to enforce treatment, and does not provide specific safeguards for the rights of the detained patient. Family lawyers therefore may have to come out of their comfort zones when dealing with a case where a child needs to be deprived of their liberty.  It may be that the family court is not the right place for such decisions to be made. 

Why might a child be deprived of their liberty?

There are a variety of reasons why a decision is made to deprive a child of liberty. 

Consent and exercise of parental responsibility. 

In some circumstances, you can consent to your own confinement. Regarding children, parents may exercise ‘parental responsibility’ which means they are able to offer their own consent when a child cannot. The younger the child the less likely it is that the acceptable ‘zone of parental authority’ will be controversial  – for example, when parents consent to a five year old receiving medical treatment. However, it has long been accepted by the courts that parental responsibility is a ‘dwindling right’ that diminishes as the child grows in age and understanding. Parental responsibility must also be exercised in the best interest of the child. 

Once a child reaches the age of 16, they are treated differently to younger children – for example, they are presumed to be able to offer consent to medical treatment as if they were an adult. But what if a 16 year old does not have the mental capacity to make decisions? Can a parent then consent to a deprivation of liberty on their behalf? The short answer is no.

The Supreme Court in D (A Child) [2019] UKSC 42 (26 September 2019) held that a parent could not consent to deprivation of liberty once a child was 16, even if the child lacked capacity. Logically this should extend to younger children and require careful examination of what falls within the normal ‘zone of parental control’. The key question was Do the restrictions fall within normal parental control for a child of this age or do they not? If they did not, Article 5 was engaged and the parent could not consent on the child’s behalf. 

However, as an indication of the complexity in this area and reasonable scope for disagreement, the court was split 3:2. The majority of those in support agreed that deprivation of liberty involved a fundamental human right and it could never be within the boundary of acceptable exercise of parental responsibility to deny a child a fundamental human right. Further, the court restated the principle set out in Cheshire West, that the living arrangements of the mentally disabled had to be compared with those of people who did not have the disabilities which they had. They were entitled to the same human rights, including the right to liberty, as any other human being. Even if they were deprived of their liberty for the best possible motives, they were still entitled to the protection of Article 5 so it could be independently ascertained that the arrangements were in fact in their best interests. 

But, its interesting to consider one of the minority judgments. At para 151 Lord Carnwath said this:

Later in [Lady Hale’s] judgment (para 48) she reinforces that view by equating deprivation of liberty with other “fundamental human rights” such as the right to life or freedom from torture. She argues that it would be a “startling proposition” that it lies within the scope of parental responsibility to authorise violation of such rights. I say at once, with respect, that I am not persuaded that such comparisons are fair or helpful. D’s parents were not authorising the state to commit torture or anything comparable to it. They were doing what they could, and what any conscientious parent would do, to advance his best interests by authorising the treatment on which all the authorities were agreed. That this involved a degree of confinement was an incidental but necessary part of that treatment, and no more than that. On the President’s view, with which I agree, they were not “authorising a violation of his rights”, but rather exercising their parental responsibility in a way which ensured that there was no such violation.

So it looks as if there is scope for that argument to be potentially revived. 

Necessary treatment for mental illness 

A child can be compelled to accept treatment for a mental disorder under the Mental Health Act 1983.or consent to their own informal admission to hospital for treatment section 131(2). Detention under the Mental Health Act provides the child with a number of important safeguards, such as the right to appeal against detention and a duty to ensure an age-appropriate environment (s 131A).

Necessary protection for the mentally incapacitated 

The Mental Capacity Act 2005 applies only to children aged 16 or over. The Mental Capacity Amendment Act 2019 inserted a new Schedule to the MCA which sets out a new administrative scheme for the authorisation of deprivation of liberty in order to enable care or treatment of a person who can’t consent. Under Schedule AA1, a ‘responsible body’ will be able to authorise arrangements giving rise to a deprivation of a person’s liberty in any setting, if satisfied that the necessary conditions are met, including that the arrangements are necessary and proportionate to prevent harm to the person and proportionate in relation to the likelihood and seriousness of harm to the person. 

Once an authorisation has been given, there are a number of safeguards put in place for the person which include regular reviews of the authorisation by the responsible body or care home and the right to challenge the authorisation before the Court of Protection. 

Detention by the police 

See section 38 of Police and Criminal Evidence Act 1984. The custody officer must secure that any arrested child is moved to local authority accommodation unless it is not practical to do so, or once the child has reached the age of 12, that no secure accommodation is available and keeping him in other local authority accommodation would not be adequate to protect the public from serious harm. 

Secure accommodation under the Children Act 1989

Use of section 25 of the Children Act 1989 and the accompanying regulations is a lawful way of depriving a child of liberty but it has proved not to be a ‘straightforward’ statutory provision. The inherent jurisdiction can be used to ‘fill the gaps’ but the courts are very clear – If section 25 applies it must be used as it provides statutory safeguards for the child.  See Re X, Re Y [2016] EWHC. 

This route has to be endorsed by court order; the consent of any party is not relevant – Re T (A child) (Secure Accommodation Order) [2018] EWCA Civ 2136.

The Regulations set out various safeguards for the child, such as ensuring that parents are informed and that the deprivation of liberty is regularly reviewed. 

In essence, section 25 operates to make deprivation of liberty lawful if the child is subject to a care order or is ‘looked after’ by the LA under section 20 of the Children Act 1989 and:

  • the child has a history of absconding and is likely to abscond from any other description of accommodation; and
  • if the child absconds they are likely to suffer significant harm; or
  • if not placed in secure accommodation, the child is likely to injure themselves or another person. 

Relevance of the child’s age

A child younger than 13 can only be placed in secure accommodation if this is authorised by the Secretary of State under Regulation 4 –  unless the child is 12 and has been arrested by the police. 

If the child is 16 or older and lacks capacity under section 2 of the Mental Capacity Act, then the Court of Protection is the more appropriate venue.  See B v RM MM AM [2010] EWHC 3801 for further consideration about transfer to and from the Court of Protection and Family Court.

There has been some confusion over whether or not a secure accommodation order can be made once a child reaches the age of 16 and this may depend on whether the child is accommodated under section 20(3) or section 20(5). 

An alternative route could be to rely on the court’s inherent jurisdiction which is theoretically limitless. 

Scotland and Wales

Wales now has a separate regime for secure accommodation under s.119 of the Social Services and Wellbeing (Wales) Act 2014 (“SSW(W) 2014”), although the provisions are substantially the same as under s.25 of the Children Act 1989.

A shortage of available secure accommodation in England lead to some children being placed in Scotland. This caused some problems about jurisdiction. Just because an order is lawfully made in England, does not mean it automatically is lawful in Scotland. See the judgment of the President of the Family Division in Re X, Re Y [2016] EWHC 2271 (Fam), para 1.

This problem has now been dealt with by The Children and Social Work Act 2017, Schedule 1 which simply amends section 25 of the Children Act to extend it to Scotland.

An application of last resort

This is a serious application and should only be made when there is no alternative – for example, it should never be used to punish a child for running away or being a nuisance. The courts have confirmed it is an order of ‘last resort’ 

If there isn’t a court order a child can only be held in secure accommodation for 72 hours every 28 days: see Children (Secure Accommodation) Regulations 1991, reg. 10. If the court makes an order, the first order can be made for an initial maximum period of 3 months and after that for further periods of up to six months. Time starts running from the date of the order.

Once the order is made, it can’t be discharged unless the order was made incorrectly. If the child’s circumstances change and the local authority  think the secure accommodation order is no longer needed the courts have decided that the way forward is to apply for a writ of habeas corpus under RSC Order 54 . If the parents and the local authority disagree about whether or not it is still needed, the parents can make an application for judicial review.

How will the child make his wishes known to the court?

Under section 25(6) the court can’t consider making a secure accommodation order if a child is not legally represented in court, unless the child decides not to apply for legal representation.

However, the court should usually appoint a guardian to represent the child under section 41(1) of the Children Act. The guardian will speak to the child and will give instructions to a solicitor; this will allow the court to say that the child is legally represented.

The guardian will recommend to the court what he thinks is in the child’s best interest, but the child’s welfare is NOT the ‘paramount consideration’ in these proceedings.

Rule 12.14 (3) of the Family Procedure Rules 2010 gives the court power to exclude a child who wants to attend court if it is in their interest to do so and they are represented although Rule 12.14(4) requires the court to give the guardian, the child’s solicitor and child, if of sufficient understanding, the opportunity to make representations about the child’s attendance.

When deciding whether or not a child should come to court, the starting point should be an evaluation of the consequences of attending or not attending upon the child’s welfare taking into account the following factors. See Re K (A Child) [2011]

  • the age and level of understanding of the child
  • nature and strength of the child’s wishes
  • the child’s emotional and psychological state
  • the impact of influence from others
  • the matters to be discussed
  • practical and logistical considerations – how far would child have to travel?
  • the impact on proceedings – is the child likely to need to be restrained in court? If so that is usually a sufficient ground to refuse to allow the child to attend.

Issues to consider when applying for a secure accommodation order

There have been many practical difficulties in applications for secure accommodation and the courts have had to look very carefully about what ‘secure accommodation’ means, the relevant criteria under section 25 that justify the order, to what extent the child’s welfare is considered in the balance and the over arching demands of proportionality. 

The complex interplay of various statutory provisions must then be seen in the context of the nationwide shortage of accommodation which is designated as ‘secure’ to meet the necessary statutory requirements.

The case of  B (Secure Accommodation Order) [2019] EWCA Civ 2025, tackled these questions head on. The court was very concerned that the lack of designated secure accommodation meant that the court was increasingly being asked to use its inherent jurisdiction to make it lawful to deprive a child of their liberty.

The court took a wide ranging review of available case law and considered submissions from the Association of Lawyers for children and set out the questions that a court must ask and answer before making a secure accommodation order. See para 98. 

(1) Is the child being “looked after” by a local authority under section 20 of the Children Act 1989 or, alternatively, does the child fall within one of the other categories specified in regulation 7 (which are children accommodated by health authorities, NHS trusts, local educational authorities and children in residential care homes or nursing homes). 

(2) Is the accommodation where the local authority proposes to place the child “secure accommodation”, i.e. is it designed for or have as its primary purpose the restriction of liberty?

(3) Is the court satisfied (a) that (i) the child has a history of absconding and is likely to abscond from any other description of accommodation, and (ii) if he/she absconds, he/she is likely to suffer significant harm or (b) that if kept in any other description of accommodation, he/she is likely to injure himself or other persons?

(4) If the local authority is proposing to place the child in a secure children’s home in England, has the accommodation been approved by the Secretary of State for use as secure accommodation? If the local authority is proposing to place the child in a children’s home in Scotland, is the accommodation provided by a service which has been approved by the Scottish Ministers?

(5) Does the proposed order safeguard and promote the child’s welfare?

(6) Is the order proportionate, i.e. do the benefits of the proposed placement outweigh the infringement of rights?

However, this did not end the confusion of many practitioners and required further guidance from the President of the Family Division in February 2020. This guidance focused on the discussion by the Court of Appeal about the definition of ‘secure accommodation’ which was found to be “any ‘accommodation designed for, or having as its primary purpose, the restriction of liberty’”

However, the President was clear that this does not mean that an application to place a child in such a unit must be determined via a s 25 secure accommodation application and he referred back to the questions asked and answered in the Court of Appeal judgment, stating that question 4 was the ‘clincher’. 

“It follows that, although an unregistered and/or unapproved secure placement may come within the definition of ‘secure accommodation’ within s 25, that accommodation cannot satisfy item (4) in the ‘relevant criteria’ with the result that a s 25 order cannot be made to authorise placement in that unit. In such a case any court approval would need to be sought under the inherent jurisdiction.

The bottom line is that Re B does NOT signal a need for the court to use s 25 to process applications for deprivation of liberty in a unit which is unapproved by the Secretary of State as ‘secure accommodation’. Such applications should continue to be considered under the inherent jurisdiction. If the s 25 criteria are met, then, of course, s 25 should be used.

The inherent jurisdiction 

If section 25 doesn’t apply then the courts could rely on the inherent jurisdiction which is in theory a ‘limitless’ power of the High Court to make decisions if there is an apparent ‘gap’ in the statute law.

The case of Wakefield Metropolitan District Council & Anor v DN & Anor [2019] EWHC 2306 (Fam). Mr Justice Cobb provided a clear overview of how the inherent jurisdiction is used to authorise a deprivation of liberty of a vulnerable adult.

The court has found there is jurisdiction to make an order with regard to a 17 year old under the court’s inherent jurisdiction, given the extraordinary circumstances of that case. See Re B (Secure Accommodation: Inherent Jurisdiction) [2013] The judge accepted the submission that the inherent jurisdiction of the High Court is theoretically limitless and in circumstances where the statutory code under section 25 is satisfied in relation to a 17-year old child (with the exception of the requirement that the child is looked after by the local authority), it is open to the court to exercise its inherent jurisdiction to direct that a child be detained in secure accommodation.

But In re T (A Child) (Secure Accommodation) [2018] EWCA Civ 2136, the court was clear that it is fundamentally unsatisfactory that many young people were being placed in secure accommodation outside the statutory scheme in units that by definition had not been approved by the secretary of state as secure children’s homes. This case has been appealed to the Supreme Court who heard the appeal in October 2020 and we are waiting for the judgment. 

The appellant, T, was a 15-year-old child who was subject to a care order. The local authority wished to place T in secure accommodation but there were no places available in any registered secure children’s homes. So the LA applied to the High Court for orders under its inherent jurisdiction authorising T’s placement in non-statutory accommodation. T had consented to the restrictions on her liberty in the placements sought and submitted that the orders restricting her liberty were unnecessary. The Court of Appeal found that consent was not a relevant issue for the exercise of the inherent jurisdiction. T appealed to the Supreme Court, wishing to be recognised as capable of consenting in law. 

The Supreme Court was asked to consider the following issues:

  • In circumstances where insufficient places are available in registered secure children’s homes, is the exercise of the inherent jurisdiction to authorise a child’s placement in unregistered secure accommodation lawful?
  • If it is, what legal test should the courts apply when determining whether to exercise the inherent jurisdiction?
  • Is a child’s consent to the confinement of any relevance when determining whether to exercise the inherent jurisdiction?

So watch this space!

Sarah Phillimore

St Johns Chambers

8th February 2021

The polarising of parental alienation

This is the text of a talk I gave at a Stowe Family Law Webinar on 24th February 2021. I discussed the often stark polarising views about parental alienation and how parents can attempt to navigate the court system. I stress that I am NOT talking about cases were one parent has been found to have caused serious harm to either the other parent or the child – these are not cases of ‘parental alienation’, these are cases where the abusive parent is rightly kept away from the children. But allegations that are not proved are not facts and cannot be used to justify denying contact with another parent.

Parental alienation – the development of the ‘two camps’ and how the court will manage these cases. 

What does ‘parental alienation’ mean and how has it developed? 

I use the term ‘parental alienation’ to mean when one parent acts without good reason – either deliberately or unconsciously – to persuade a child to think and act negatively towards the other parent to the extent that the child rejects any form of relationship with that other parent. 

Dr Childress puts it this way: ‘If a child is rejecting a parent, one parent is abusing the child. It is the duty of the court to find out which it is”

I could talk for hours about the development of ‘parental alienation’ as a concept. It has generated a huge amount of ‘research’ and discussion. But I do not want to get bogged down in arguing about labels. There are many in the ‘pro PA’ camp who are very keen for there to be a definition of PA in the Domestic Abuse Bill. I am afraid to say I think this is an example of ‘magical thinking’ – that by simply defining a term,  gives the courts the effective tools to change behaviour. 

What is crucial is that we identify the behaviour of some parents, its impact on the children and what we can do to get these very serious cases dealt with as quickly and fairly as possible. Time really is of the essence in such a situation; the more time that passes, the less likely you are to restore any relationship between child and alienated parent. 

The ‘two camps’ of thought. 

Sadly, in so many areas of life and law, our ‘public debate’ appears to descend into pushing and shoving between two distinctly opposed groups. 

Group one call for greater recognition of the prevalence of parental alienation and the harm it does. For example, in 2020 Good Egg Safety CIC produced a report about parental alienation and its impact, concluding that parental alienation was: 

A devastating form of ‘family violence’ with psychological abuse and coercive control at its heart 

Of the 1,513 who responded to the survey, parental alienation was a live issue for 79% of respondents who were split 56% male, 44% female. 80% experienced an adverse impact on their mental health, 55% an adverse financial impact. 58% saw court orders breached.

But Group Two either denies the existence of parental alienation or claims it is a ‘charade’ or a ‘tool’ used by abusive men to hide their abuse. This view has some very high profile support, including the Victim’s Commissioner for London who tweeted in approval on February 4th an article which demands ‘parental alienation’ must not be defined as ‘abuse’ in the Domestic Abuse Bill.

The power of PA is that it seems like a reasonable concept; you can imagine scenarios where one parent acts to exclude another. Yet PA has instead become a smokescreen, a tactic to obfuscate custody hearings and garner sympathy from judges and custody evaluators who may have an instinctive suspicion towards women. Its objective is to make abusive men the victims and protective mothers the perpetrators. Although PA proponents use gender-neutral language, empirical studies have demonstrated that its impact is gender-specific.

This is quite an odd article – the language used is alien to the English court system –  ‘custody’ and ‘custody evaluators’  – and the author is an academic in Australia. This is perhaps ironic considering the reasons why England and Wales abandoned the terms ‘custody’ and ‘access’ in the Children Act 1989, due to fears that this type of language increased the risk that parents would see children as property, to be passed back and forth like parcels. Needless to say, I do not agree with what the article says. 

It is a great shame that we have ended up in these polarised camps. I have been a family lawyer since 1999. I have dealt with 100s of private law cases, acting for mothers, fathers and children. I have absolutely no doubt, because I have seen it many times, that mothers and fathers act to deprive the other parent of a healthy relationship with their child and do this for no good reason. And equally, there is no doubt that some abusive parents will use claimed parental alienation as a smoke screen for their own abusive behaviour. But the latter does not negate the existence of the former. 

So how do the courts identify parental alienation?

You can find a useful review of the case law up to 2018 in the  Review of the law and practice around ‘parental alienation’ in May 2018 from Cardiff University for Cafcass Cymru. There is a very useful summary of the relevant case law in Appendix A. The report concludes at para 4.7:

With no clear accepted definition or agreement on prevalence, it is not surprising that there is variability in the extent of knowledge and acceptance of parental alienation across the legal and mental health professions. The research has however, provided some general agreement in the behaviours and strategies employed in parental alienation. This has led to the emergence of several measures and tests for parental alienation, although more research is needed before reliability and validity can be assured. Many of the emerging interventions focus upon psycho-educational approaches working with children and estranged parents, but more robust evaluation is needed to determine their effectiveness.

Two more recent authorities are;

  • Transfer of residence of child from mother to father – RH (Parental Alienation)  [2019] EWHC 2723 (Fam) (03 October 2019)
  • Re S (Parental Alienation: Cult)  [2020] EWCA Civ 568 – child ordered to live with father if mother continued to refused to give up her adherence to a ‘harmful and sinister’ cult.

The CAFCASS assessment framework for private law cases has a useful section headed ‘Resources for assessing child refusal/assistance’ which in turn has a link to a section headed, ‘ Typical behaviours exhibited where alienation may be a factor ’. These include:

  • The child’s opinion of a parent is unjustifiably one sided, all good or all bad, idealises one parent and devalues the other.
  • Vilification of rejected parent can amount to a campaign against them.
  • Trivial, false, weak and/or irrational reasons to justify dislike or hatred.
  • Reactions and perceptions are unjustified or disproportionate to parent’s behaviours.
  • Talks openly and without prompting about the rejected parent’s perceived shortcomings.
  • Revises history to eliminate or diminish the positive memories of the previously beneficial experiences with the rejected parent. May report events that they could not possibly remember.
  • Extends dislike/hatred to extended family or rejected parent (rejection by association).
  • No guilt or ambivalence regarding their attitudes towards the rejected parent.
  • Speech about rejected parent appears scripted, it has an artificial quality, no conviction, uses adult language, has a rehearsed quality.
  • Claims to be fearful but is aggressive, confrontational, even belligerent.

What factors operate AGAINST proper resolution of cases involving parental alienation? 

‘Structural problems’ 

You must be aware of the way the court system is structured that operate against effective resolution. It is clear that an adversarial court environment is not a good place for angry or frightened people to be.  Even the physical environment of many courts operates to reduce the chances of effective negotiation and compromise, with no where private to sit and talk. Of course, remote hearings don’t make any of that any easier.  But on a positive note the findings of the Nuffield Observatory indicate that the perception at least of such hearings is that they are fair most or all of the time.

The key point is that the courts are overwhelmed and never more so than now. 

There is a huge backlog of cases throughout the system and urgent public law cases will get priority. So dire is the current situation that recently HHJ Wildblood QC felt it necessary to publish a judgment warning parents off coming to court to argue about trivial matters ,such as the precise location of pick up and drop off.  See: B (A Child) (Unnecessary Private Law Applications), Re [2020] EWFC B44 (25 September 2020).

The problem is that mostly these arguments are not about handovers at all – they are simply a manifestation of many years of emotional pain, frustration or desire to control – all of which can feed into the developing situation that is very serious and risks causing significant harm to the children. 

It’s always good to remember that the courts are pre-disposed to want you to go away. There may be initial resistance to identifying a case as a serious example of risked emotional harm. You must hit the ground running with a clear case, effectively presented.

Lack of objectivity

It is rare – I would say impossible – for any case to involve someone who is 100% a victim of another’s behaviour. Clients must be encouraged to look with realism about their own contributions to any breakdown in the adult relationships and do what they can to mitigate this. A key responsibility for us as lawyers is not to engage personally and I know this is often difficult to guard against when we feel instinctive sympathy for a client denied any relationship with his or her children for no good reason that we can see. 

However I am often taken aback by the tone of correspondence I see between solicitors. It is clear that anything that operates to increase the emotional tension between the parties is likely to prolong and exacerbate existing difficulties. 

Delays in finding of fact hearings. 

It seems likely that most cases will require a finding of fact. These are not cases where the alienating parent is likely to ‘let go’ of any allegations and the court will need a firm basis on which to proceed if considering a change of residence. 

And do not wait until the outcome of the fact finding to consider the next steps. Some cases will require input from the LA as to whether they will consider care proceedings and provision of foster placement.  Be ready to make the request for a section 37 report. 

Lack of exit plan 

So you have navigated the fact finding process and a court has determined that the child’s residence needs to change.  Depending on the length of time a child has been alienated and the degree of opposition expressed, you may need expert help on the ground. This will require careful thought as there are sadly many examples of when attempts to change residence went wrong – one example is Re A (Children) (Parental alienation) [2019] EWFC

There is a serious problem is the shortage of available expert practitioners in this field and risk that those who do operate are partisan. Check CVs carefully! Do not instruct anyone who purports to offer psychological help but who is NOT subject to scrutiny by any external regulator.

What about costs? 

I have only had two cases in my career where costs were ordered against a parent (both mothers) who were found to have deliberately obstructed the court process. I have no evidence to support my feeling that this may become an increasing trend, but be aware of the potential for a costs argument and be ready to make it. And don’t – as I did! – neglect to consider the rate of interest to be attached to a cost order and the time from when it starts running. 

Basic principles

Costs orders in children’s cases are exceptional but possible. 

The Family Procedure Rules adopt most of the costs rules of the Civil Procedure Rules with one important distinction. FPR r 28.2(1) disapplies r 44.2(2) of the CPR; being the ‘general rule’ that the unsuccessful party will pay the costs of the successful party. There is thus no general assumption in family proceedings that ‘costs follow the event’. The general rule is instead that parties have a  ‘clean sheet’ i.e. there is no presumption as to whether or not there will be a costs order. 

The Judge retains a general discretion to make a costs order in family proceedings– as set out in primary legislation (see s51(1) SCA 1981) and repeated at r28.1 FPR. 

The conduct of the parties is a relevant factor at CPR r44.2(4)(a), which is not disapplied by FPR r 28.3. ‘Conduct’ is further defined at CPR r44.2(5):

  1. conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction – Pre-Action Conduct or any relevant pre-action protocol;
  2. whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
  3. the manner in which a party has pursued or defended its case or a particular allegation or issue; 
  4. whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim. 

See principles derived from Re R(A minor) [1996] EWCA Civ 1120 and  In the matter of S (A Child) [2015] UKSC 20 :

  1. The child’s welfare is paramount, the court adopts a quasi-inquisitorial approach and there are many possible outcomes;
  2. The court generally needs to hear from both parents: ‘no one should be deterred by risk of having to pay other sides costs from playing their part in helping the court achieve the right solution’;
  3. The court can assume that the parties are not generally motivated by malice;
  4. The parties need to work together and one should not be stigmatised as ‘the loser’;
  5. Costs orders can reduce funds available to the family.

How does the court identify ‘unreasonable conduct’ which would make it appropriate to order costs?

The Court of Appeal in R (a Minor) considered it in this way:

Of course, the parties should not be deterred by the prospects of having to pay costs, from putting before the court that which they genuinely think to be in the best interests of the child, but there have to be limits. Children should not be put through the strain of being subject to claims that have very little real prospect of success… in other words there was conduct in relation to the litigation which goes way beyond the usual sort of attitude which a concerned parent shows in relation to the future of his child’.

The decision in Re R has been followed and endorsed in a number of cases; for example, see Re F (Family Proceedings: Costs) [2008] EWCA Civ 938 and G (Children) [2013] EWCA Civ 1017.

The court does not need to make a finding that the party acted maliciously or in deliberate bad faith; a party may genuinely believe their actions are reasonable but in reality they are not. 

In G (Children) cited above, a costs order was upheld against the father because it had not been necessary for him to ‘launch these proceedings’ and the proceedings had been used as a vehicle for ‘getting at the mother’. There was ‘absolutely no merit’ in the case bought by the father. Thus the father had acted unreasonably both in starting the proceedings but more importantly in the way he had conducted himself throughout the proceedings.

Sarah Phillimore 

St Johns Chambers

20th February 2021 

The court’s power to restrain unreasonable behaviour

An interesting recent case is A Local Authority v TA & Others [2021] EWCOP 3. It discusses the law around recording court hearings and shows the wide power the court has to restrain a litigant’s unreasonable behaviour in the wider court process.

This case concerned an elderly woman, GA, who has dementia and was represented by the Official Solicitor. She was cared for at home by her adult son TA. The court was concerned about the negative impact on the proceedings by the actions and conduct of TA and examined two issues 

  • If TA should be permitted to record the court hearings
  • the extent to which the court had power to restrict his communications with the court office. 

Background 

In March 2019 the local authority responsible for meeting GA’s needs under the Care Act 2014 brought proceedings under the Mental Capacity Act 2005. 

TA wanted to record the hearings, essentially for his ‘own protection and benefit’ as the local authority employees were ‘pathological liars’ and he had suffered bullying and intimidation from ‘many’ judges. He also objected to the costs of a transcript and pointed out the common delays in obtaining one. 

TA’s application was opposed on the basis that the widely recognised default position against recording should be recognised and there was a risk that TA would publish the recordings on the internet, as he had done in the past. 

The Judge advised TA that it was possible to be supported in the court proceedings by a McKenzie friend or the services of ‘Support Through Court’. TA could apply to the court for a transcript and in exceptional circumstances, such as wishing to correct an inaccuracy in the transcript, could listen to the official audio recording. (Practice Direction: (Audio Recording of Proceedings: Access) [2014] 1 WLR 632 (considered and confirmed recently in Dring v Cape Intermediate Holdings Ltd. [2019] UKSC 38) at [25]). The Judge indicated he would not grant permission to record, whereupon TA terminated his link to the remote hearing. 

Recording court proceedings

The Judge noted that the Court of Protection is not specifically included (see section 85D(2) Courts Act 2003) in the list of courts to which section 55 and schedule 25 of the Coronavirus Act 2020 (‘the 2020 Act’) applies.  The 2020 Actintroduced new statutory provisions (sections 85A-85D) into the Courts Act 2003 which allows the court to direct a recording of the proceedings and creates a criminal offence for a person to make or attempt to make an unauthorised recording 

However, the guidance ‘Remote Access to the Court of Protection’ issued in March 2020 advised that the terms of the statutory criminal prohibitions were to be included in every standard order thereafter, and had been included in all orders in these proceedings. 

Section 9 of the Contempt of Court Act 1981 in addition makes it a contempt of court to record a hearing without the permission of the Judge. There is a discretion under the civil law to permit recording (Practice Direction (Tape Recorders) [1981] 1 WLR 1526) if the applicant had a ‘reasonable need’. The Judge found TA had no such need, having a very good, even ‘extraordinary’ grasp of the procedures, documents and issues engaged. 

These proceedings were also subject to ‘Transparency Order’ which prohibits the reporting of any material which identifies, or is likely to identify, that GA is the subject of proceedings; any person as a member of the family of GA; that A Local Authority is a party; and where GA lives. The content of video-recordings which relates to these proceedings is controlled by s.12(1)(b) of the Administration of Justice Act 1960 and may not be published unless publication falls withinthe exceptions contained in Practice Direction 4Aparagraphs 33 to 37.  

The court endorsed the definition of ‘publication’ set out by Munby J (as he then was) in re B [2004] EWCH 411 para 82(iii) as anything the law of defamation would treat as a publication, thus covering most forms of dissemination either oral or written. 

Order restricting communication with the court office

TA had been engaged in litigation concerning GA for approximately two years and the nature of his correspondence to the local authority was ‘abusive and inflammatory’ to such an extent that the local authority deemed TA a ‘vexatious complainant’ in March 2019 in line with the Local Government & Social Care Ombudsman’s guidance on managing unreasonable complaint behaviour. The decision was reviewed but ultimately extended until 12 September 2021 as TA refused to accept limits to his behaviour. 

By the latter part of 2020, TA’s behaviour had extended to the Court of Protection court office. The Operations Manager noted excessive email traffic generated by TA who copied in ‘100s’ of other recipients, along with excessive telephone calls with abusive comments, primarily directed at the judiciary. Further, TA made 39 COP9 applications over a 24 month period.

TA dismissed the evidence of the Operations Manager, describing the statement as a “badly drafted pathetic attempt at a fraudulent witness statement”.  He did not deny the volume of his correspondence but sought to justify it on the basis that HMCTS staff were engaged in a deliberate attempt to pervert the course of justice, in collaboration with the judiciary. 

The court found no justification for the volume and nature of the correspondence from TA. It was wholly disproportionate and no doubt a significant distraction for the court staff. The court cited the obiter remarks of King LJ in Agarwala v Agarwala [2016] EWCA Civ 1252 which considered general judicial case management powers to regulate communications with the court to avoid ‘a torrent of informal, unfocussed emails’Support for this approach was further located in the Court of Appeal’s judgment in Attorney-General v Ebert [2002] 2 All ER 789 where Brooke LJ observed at para 35 that by exercise of the inherent jurisdiction, the court’s supervisory role extends to the regulation of the manner in which the court process may in general be exercised, including the power to restrain litigants from wasting the time of court staff and disturbing the orderly conduct of court processes in ‘completely obsessive pursuit of their own litigation’. 

The court therefore proposed to make the ‘exceptional’ order of restraining TA from communicating with the court office by email and telephone. TA could continue to send letters if necessary, but he could not expect a response if his correspondence was abusive. While Brooke LJ contemplated the exercise of the inherent jurisdiction, the court proposed to rely on section 47(1) Mental Capacity Act 2005.

A penal notice was attached to the injunction. 

2020: The Year in Review

2020 has been a very strange year. I found myself both recorded by the police as a ‘hate incident’ and also rewarded as ‘Family Law Commentator of the Year’.

Annoyingly, I appear to have lost data from Google analytics for the time prior to August 2020 but from 4th August – 23rd December the CPR site had 148,689 users. Sadly, yet again the two most read posts dealt with domestic violence (26,804) and parents with mental health difficulties (22,733). The discussion about which sex abuses children most continued to be of great interest and was the fourth most read post (14,238) and attracted by far the most comments.

A lot of my focus this year has been on the increasing ferocity and general insanity of the ‘gender ideology’ debate and the impact on young children of treatment via puberty blockers and cross sex hormones. The December decision in Bell v Tavistock was of enormous significance; permission has now been sought to challenge it at the Court of Appeal and I can see I am going to need to keep updating my conference speech for the 8th Family Law and Children’s Rights Conference. Pandemic permitting, I will be speaking there in July 2021.

That focus inevitably meant I had less time to examine issues of particular relevance to the child protection system – but my concerns about the lack of open and honest debate relating to issues around the transition of children are directly relevant to the child protection system and safeguarding in general. The unifying thread for all of my work is the concern about the consequences of allowing single issue campaigners to be the ones to apparently decide the direction of law and policy.

Violence

One such concern was the approach of the Ministry of Justice to issues of violence in the family law system. The report Assessing Risk of Harm to Children and Parents in Private Law cases was published in June 2020 and in December 2020 I attended an on line discussion with some of its authors. I was not reassured. The focus appeared to be entirely on identifying women as victims at the outset; there was no discussion about the harm done by exaggerated or false allegations of abuse and how the court system was going to deal with any of this. There are serious implications for Article 6 rights in all of this.

We were told in December that it was accepted that lack of resources was a real problem – most notably for the implications this has on judicial continuity – but at the same time told to reflect on our practice and ‘improve’ our performance. I remain very uneasy at being told the courts operate a ‘pro contact’ culture. That isn’t my experience. That there is such an apparently huge disconnect between my experience and those of others, does require further thought.

A conjoined Court of Appeal case is due to be heard in January 2021, with a variety of interveners. This is apparently to examine appeals from decisions made in the magistrates court around issues of serious sexual violence in relationships between parents. Hopefully this will provide more clarity or at least be an honest airing of the issues.

Parental Alienation

This clarity is urgently needed because a further schism is opening up between those who recognise parental alienation as a serious problem, involving parents of either sex and those who claim it is rather a smokescreen put up by abusive fathers, to deny women the opportunity to protect themselves and their children. I found myself writing a lot about parental alienation this year. It must surely be possible for the Family Justice System to find better ways to more efficiently manage the tensions inherent in promoting contact but preventing children from harm.

Journalists and the ‘secret family courts’

Journalist Melanie Newman succeeded in getting permission to appeal against the decision to refuse to allow her access to case papers – the appeal should be heard in March. This is likely to be a significant decision relating to issues around the extent of disclosure of information in family cases to journalists. I used to be in favour of greater transparency but have revised my views in light of what appears to be the continuing failure of journalists to report with any degree of accuracy about the family justice system.

Happy New Year?

So there is a lot happening. We have at least appeared to have grappled tolerably well with the challenges of remote hearings during the pandemic, and the work of the Nuffield Family Justice Observatory has been extremely helpful.

But not all of what has been happening is the product of a genuine desire to find the truth and solutions. Much of it, in my view, is the result of single issue campaigners who wish to bend the law to their own vested interests. The courts, at least so far, seem willing to resist.

But the saddest thing of all remains. The CPR site has been running since 2014. In all that time the two most read posts remain constant – concerns about violence in relationships and how parents with mental health difficulties navigate the court system. That suggests strongly to me that we have got no better at dealing with either. I hope by the end of 2021 both no longer dominate the Top Ten, but I am not optimistic.

At least I hope this time next year, to be no longer a police certified hate monger, but that will depend on how my own court action pans out.

A very Merry Christmas to all my readers. And, I hope – a Happy New Year.