Uncategorized

The Care Review

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

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

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

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

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

In 2018 the Family Rights Group published the Care Crisis Review

In February 2020 the Westminster Legal Policy forum keynote seminar

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

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

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

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

The 2022 Review

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

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

The Review describes its remit as

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

Recommendations are made in ten areas

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

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

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

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

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

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

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

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

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

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

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

Why am I cynical?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Further reading

Commentary from Article 39 – which sounds a note of caution

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

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

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

Statement from the Children’s Society

Statement from Pause

Patrick Butler in the Guardian

Book review: Sexy but Psycho

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

Sarah Phillimore

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

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

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

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

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

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

Abuse and findings of fact

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

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

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

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

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

Non- court dispute resolution

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

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

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

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

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

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

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

The Court of Appeal were crystal clear at para 65

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

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

Concluding remarks

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

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

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

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

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

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

Neutral Citation Number: [2021] EWCA Civ 448

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

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

Summary of guidance

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

Do we need a finding of fact hearing?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Judge commented at para 120 

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

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

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

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

b)        What is the likelihood of it arising?

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

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

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

f)         Is the outcome proposed proportionate?

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

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

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

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

d)             possible motivations for making allegations;

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

His last comment at para 139 is interesting 

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

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

The following special measures were therefore put in place

a) separate waiting areas were arranged for the mother;

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

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

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

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

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

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

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

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

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

Further reading

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

‘The Shake’

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

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

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

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

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

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

Microsoft Teams meeting

Join on your computer or mobile app

Click here to join the meeting

Join with a video conferencing device

494469532@t.plcm.vc

Video Conference ID: 124 901 523 8 

Alternate VTC instructions

Or call in (audio only)

+44 20 3443 8791,,967692441#   United Kingdom, London 

Phone Conference ID: 967 692 441# 

Find a local number | Reset PIN

Learn More | Meeting options

Children’s Consent to Medical Transition

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

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

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

Summary

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

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

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

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

So where do we go from here?

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

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

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

The High Court decision

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

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

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

The response of the Court of Appeal

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

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

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

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

The Tavistock appealed on 8 grounds (para 12)

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

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

How did the High Court deal with the law?

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

How did the High Court deal with the evidence?

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

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

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

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

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

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

As the Court of Appeal made clear at para 64

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

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

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

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

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

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

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

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

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

Where next?

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

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

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

And at para 93:

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

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

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

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

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

First – Do No Harm.

Online comment

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

Transgender Trend response

Andrew Tettenborn, Salisbury Review

Court overturns ‘cruel ruling’ Pink News

Gendered Intelligence blog

Further reading

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

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

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

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

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

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

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

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

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

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

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

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

Organisations/Podcasts

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

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

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

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

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

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

 

When Facts Don’t Matter

This is a post by Sarah Phillimore

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The article ends in unhelpful hyperbole

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

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

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

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

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

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

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

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

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

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

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

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

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

What approach did the court take?

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

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

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

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

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

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

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

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

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

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

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.