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

SUMMARY: TLDR

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

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

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

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

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

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

PARTICULARY CONCERNING EDIT 28th March 2021

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

Some particular points of difficulty

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

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

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

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

Background to the application

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

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

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

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

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

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

The court was very clear that:

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

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

Who is XY?

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

The questions for the court

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The court concluded

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

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

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

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

Conclusion

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

This is a post by Sarah Phillimore

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

There are four further Best Practice Guidances

The application and case management

Support for work with families prior to proceedings

Section 20/section 76 accommodation

Special guardianship orders

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

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

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

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

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

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

The former President said this about excessive workloads in 2018:

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

47 core recommendations

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

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

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

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

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

Recommendations that sound good – but what do they mean?

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

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

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

xxix. renewed emphasis on effective IRHs

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

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

xxxviii. additional hearings: only where necessary.

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

Recommendations we have heard before

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

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

xxviii. renewed emphasis on judicial continuity

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

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

There is so much more that needs to be said

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

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

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

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

EDIT March 9th 2021

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

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

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

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

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

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

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

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

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

The ‘two camps’ of thought. 

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

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

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

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

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

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

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

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

So how do the courts identify parental alienation?

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

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

Two more recent authorities are;

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

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

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

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

‘Structural problems’ 

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

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

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

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

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

Lack of objectivity

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

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

Delays in finding of fact hearings. 

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

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

Lack of exit plan 

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

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

What about costs? 

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

Basic principles. 

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

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

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

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

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

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

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

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

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

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

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

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

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

Sarah Phillimore 

St Johns Chambers

20^th February 2021