An interesting recent case is A Local Authority v TA & Others [2021] EWCOP 3. It discusses the law around recording court hearings and shows the wide power the court has to restrain a litigant’s unreasonable behaviour in the wider court process.
This case concerned an elderly woman, GA, who has dementia and was represented by the Official Solicitor. She was cared for at home by her adult son TA. The court was concerned about the negative impact on the proceedings by the actions and conduct of TA and examined two issues
If TA should be permitted to record the court hearings
the extent to which the court had power to restrict his communications with the court office.
Background
In March 2019 the local authority responsible for meeting GA’s needs under the Care Act 2014 brought proceedings under the Mental Capacity Act 2005.
TA wanted to record the hearings, essentially for his ‘own protection and benefit’ as the local authority employees were ‘pathological liars’ and he had suffered bullying and intimidation from ‘many’ judges. He also objected to the costs of a transcript and pointed out the common delays in obtaining one.
TA’s application was opposed on the basis that the widely recognised default position against recording should be recognised and there was a risk that TA would publish the recordings on the internet, as he had done in the past.
The Judge advised TA that it was possible to be supported in the court proceedings by a McKenzie friend or the services of ‘Support Through Court’. TA could apply to the court for a transcript and in exceptional circumstances, such as wishing to correct an inaccuracy in the transcript, could listen to the official audio recording. (Practice Direction: (Audio Recording of Proceedings: Access) [2014] 1 WLR 632 (considered and confirmed recently in Dring v Cape Intermediate Holdings Ltd. [2019] UKSC 38) at [25]). The Judge indicated he would not grant permission to record, whereupon TA terminated his link to the remote hearing.
Recording court proceedings
The Judge noted that the Court of Protection is not specifically included (see section 85D(2) Courts Act 2003) in the list of courts to which section 55 and schedule 25 of the Coronavirus Act 2020 (‘the 2020 Act’) applies. The 2020 Actintroduced new statutory provisions (sections 85A-85D) into the Courts Act 2003 which allows the court to direct a recording of the proceedings and creates a criminal offence for a person to make or attempt to make an unauthorised recording
However, the guidance ‘Remote Access to the Court of Protection’ issued in March 2020 advised that the terms of the statutory criminal prohibitions were to be included in every standard order thereafter, and had been included in all orders in these proceedings.
Section 9 of the Contempt of Court Act 1981 in addition makes it a contempt of court to record a hearing without the permission of the Judge. There is a discretion under the civil law to permit recording (Practice Direction (Tape Recorders) [1981] 1 WLR 1526) if the applicant had a ‘reasonable need’. The Judge found TA had no such need, having a very good, even ‘extraordinary’ grasp of the procedures, documents and issues engaged.
These proceedings were also subject to ‘Transparency Order’ which prohibits the reporting of any material which identifies, or is likely to identify, that GA is the subject of proceedings; any person as a member of the family of GA; that A Local Authority is a party; and where GA lives. The content of video-recordings which relates to these proceedings is controlled by s.12(1)(b) of the Administration of Justice Act 1960 and may not be published unless publication falls withinthe exceptions contained in Practice Direction 4A, paragraphs 33 to 37.
The court endorsed the definition of ‘publication’ set out by Munby J (as he then was) in re B [2004] EWCH 411 para 82(iii) as anything the law of defamation would treat as a publication, thus covering most forms of dissemination either oral or written.
Order restricting communication with the court office
TA had been engaged in litigation concerning GA for approximately two years and the nature of his correspondence to the local authority was ‘abusive and inflammatory’ to such an extent that the local authority deemed TA a ‘vexatious complainant’ in March 2019 in line with the Local Government & Social Care Ombudsman’s guidance on managing unreasonable complaint behaviour. The decision was reviewed but ultimately extended until 12 September 2021 as TA refused to accept limits to his behaviour.
By the latter part of 2020, TA’s behaviour had extended to the Court of Protection court office. The Operations Manager noted excessive email traffic generated by TA who copied in ‘100s’ of other recipients, along with excessive telephone calls with abusive comments, primarily directed at the judiciary. Further, TA made 39 COP9 applications over a 24 month period.
TA dismissed the evidence of the Operations Manager, describing the statement as a “badly drafted pathetic attempt at a fraudulent witness statement”. He did not deny the volume of his correspondence but sought to justify it on the basis that HMCTS staff were engaged in a deliberate attempt to pervert the course of justice, in collaboration with the judiciary.
The court found no justification for the volume and nature of the correspondence from TA. It was wholly disproportionate and no doubt a significant distraction for the court staff. The court cited the obiter remarks of King LJ in Agarwala v Agarwala[2016] EWCA Civ 1252 which considered general judicial case management powers to regulate communications with the court to avoid ‘a torrent of informal, unfocussed emails’. Support for this approach was further located in the Court of Appeal’s judgment in Attorney-General v Ebert [2002] 2 All ER 789 where Brooke LJ observed at para 35 that by exercise of the inherent jurisdiction, the court’s supervisory role extends to the regulation of the manner in which the court process may in general be exercised, including the power to restrain litigants from wasting the time of court staff and disturbing the orderly conduct of court processes in ‘completely obsessive pursuit of their own litigation’.
The court therefore proposed to make the ‘exceptional’ order of restraining TA from communicating with the court office by email and telephone. TA could continue to send letters if necessary, but he could not expect a response if his correspondence was abusive. While Brooke LJ contemplated the exercise of the inherent jurisdiction, the court proposed to rely on section 47(1) Mental Capacity Act 2005.
Annoyingly, I appear to have lost data from Google analytics for the time prior to August 2020 but from 4th August – 23rd December the CPR site had 148,689 users. Sadly, yet again the two most read posts dealt with domestic violence (26,804) and parents with mental health difficulties (22,733). The discussion about which sex abuses children most continued to be of great interest and was the fourth most read post (14,238) and attracted by far the most comments.
A lot of my focus this year has been on the increasing ferocity and general insanity of the ‘gender ideology’ debate and the impact on young children of treatment via puberty blockers and cross sex hormones. The December decision in Bell v Tavistock was of enormous significance; permission has now been sought to challenge it at the Court of Appeal and I can see I am going to need to keep updating my conference speech for the 8th Family Law and Children’s Rights Conference. Pandemic permitting, I will be speaking there in July 2021.
That focus inevitably meant I had less time to examine issues of particular relevance to the child protection system – but my concerns about the lack of open and honest debate relating to issues around the transition of children are directly relevant to the child protection system and safeguarding in general. The unifying thread for all of my work is the concern about the consequences of allowing single issue campaigners to be the ones to apparently decide the direction of law and policy.
Violence
One such concern was the approach of the Ministry of Justice to issues of violence in the family law system. The report Assessing Risk of Harm to Children and Parents in Private Law cases was published in June 2020 and in December 2020 I attended an on line discussion with some of its authors. I was not reassured. The focus appeared to be entirely on identifying women as victims at the outset; there was no discussion about the harm done by exaggerated or false allegations of abuse and how the court system was going to deal with any of this. There are serious implications for Article 6 rights in all of this.
We were told in December that it was accepted that lack of resources was a real problem – most notably for the implications this has on judicial continuity – but at the same time told to reflect on our practice and ‘improve’ our performance. I remain very uneasy at being told the courts operate a ‘pro contact’ culture. That isn’t my experience. That there is such an apparently huge disconnect between my experience and those of others, does require further thought.
A conjoined Court of Appeal case is due to be heard in January 2021, with a variety of interveners. This is apparently to examine appeals from decisions made in the magistrates court around issues of serious sexual violence in relationships between parents. Hopefully this will provide more clarity or at least be an honest airing of the issues.
Parental Alienation
This clarity is urgently needed because a further schism is opening up between those who recognise parental alienation as a serious problem, involving parents of either sex and those who claim it is rather a smokescreen put up by abusive fathers, to deny women the opportunity to protect themselves and their children. I found myself writing a lot about parental alienation this year. It must surely be possible for the Family Justice System to find better ways to more efficiently manage the tensions inherent in promoting contact but preventing children from harm.
Journalist Melanie Newman succeeded in getting permission to appeal against the decision to refuse to allow her access to case papers – the appeal should be heard in March. This is likely to be a significant decision relating to issues around the extent of disclosure of information in family cases to journalists. I used to be in favour of greater transparency but have revised my views in light of what appears to be the continuing failure of journalists to report with any degree of accuracy about the family justice system.
So there is a lot happening. We have at least appeared to have grappled tolerably well with the challenges of remote hearings during the pandemic, and the work of the Nuffield Family Justice Observatory has been extremely helpful.
But not all of what has been happening is the product of a genuine desire to find the truth and solutions. Much of it, in my view, is the result of single issue campaigners who wish to bend the law to their own vested interests. The courts, at least so far, seem willing to resist.
But the saddest thing of all remains. The CPR site has been running since 2014. In all that time the two most read posts remain constant – concerns about violence in relationships and how parents with mental health difficulties navigate the court system. That suggests strongly to me that we have got no better at dealing with either. I hope by the end of 2021 both no longer dominate the Top Ten, but I am not optimistic.
At least I hope this time next year, to be no longer a police certified hate monger, but that will depend on how my own court action pans out.
A very Merry Christmas to all my readers. And, I hope – a Happy New Year.
This is the text of a talk given to Bath Resolution on November 3rd 2020.
It is time to take stock about where we are now with ‘parental alienation’. Sadly, in so many areas of life and law, our ‘public debate’ appears to descend into pushing and shoving between two distinctly opposed groups. I have no doubt this is happening now in the context of parental alienation and – as ever – the people this will hurt most are the children involved.
I could talk for hours about the development of ‘parental alienation’ as a concept. It has generated a huge amount of ‘research’ and discussion. I do not want to get bogged down in arguing about labels – what matters here is 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.
What follows does no more than scratch the surface but hopefully gives you some suggestions for further reading and research of your own.
I will look at three headings:
The identification of Parental Alienation
The likely response of the courts
Pitfalls to avoid.
The identification of parental alienation
There is currently a battle raging between two camps; those who state that ‘parental alienation’ is no more than another tool of an abusive parent (the father) who makes such allegation to cover up his own violence, and those who assert it is a prevalent and highly damaging form of emotional abuse.
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.
A pattern emerged in the family courts (England & Wales) of parental alienation (PA) raised as a response to domestic abuse claims, as proved in Dr Adrienne Barnett’s research published in January 2020. It resulted in devastating outcomes for mothers and children. The need for a child to maintain contact became a priority as we were subtly influenced to believe in a new stereotype; a hostile, vindictive mother; a woman scorned, one who used her child as a pawn. Domestic abuse was reframed by controlling, abusive fathers who denied their behaviour, lied about it and projected it onto bewildered, abused mothers. Fathers’ rights groups powerfully marketed the new stereotype. They cried from the rooftops;
“Mothers lie about abuse and cut off contact from deserving fathers; we are the true victims; there is a bias against us!”
Judges routinely minimised domestic abuse in the courtroom; mothers were disbelieved, dismissed and punished through the contact arrangements. Welfare reports were often carried out by unsuitable and underqualified assessors.
This kind of assertion cannot be dismissed simply because the language used is overblown and the evidence in support is questionable – these issues have captured the attention of law and policy makers.
The recent report from the Ministry of Justice in June 2020 purports to assess risk of harm to parents and children in private law cases. Concerningly, it talks of a ‘pro contact culture’ where “the courts placed undue priority on ensuring contact with the non-resident parent, which resulted in systemic minimisation of allegations of domestic abuse.”
I have been critical of this report, not least because it makes no sense to recast the domestic and international obligations on the courts to protect the child’s Article 8 rights to a relationship with both parents as a ‘culture’. Further there is heavy reliance on uncorroborated anecdotal accounts to support the Watson/Barnett view.
However, I have to concede that if over a thousand people take the trouble to write in with serious complaints, we can’t ignore that many are very unhappy about the way the family justice system operates and we should be curious about the reasons why.
But I do not think the root of the problems here are with a ‘pro contact’ culture and use of this phase does, in my view, (either consciously or not), minimise the harm that parental alienation does.
If you wish to read further, my comments and a link to the report are here
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.
Some more recent authorities are;
T (Parental Alienation), Re [2019] EWHC 3854 (Fam) (18 December 2019)- interesting case where the mother agreed to a transfer of residence
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.
The likely response of the Courts
So you think you have a case of parental alienation on your hands? Now what?
We must be aware of the elements which are nothing to do with the legal or factual aspects of the case before us, but which all operate to frustrate an efficient or timely resolution. All my cases involving parental alienation have lasted years. The vast majority ended only when the child aged out of the system or the other parent gave up. However, there does seem to be a greater willingness from the courts to transfer residence now, than I saw 10 years ago – I would be interested to know if anyone else shares this view.
The courts are overwhelmed.
The key point is that the courts are overwhelmed and never more so than now. The removal of legal aid for private law applications caused not a rush to mediation as was hoped but instead to a significant increase in litigants in person with consequent obvious additional burdens for Judges.
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. .
But 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.
Maintain your 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.
Push for finding of fact as soon as possible and consider LA involvement
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.
Other ‘structural’ problems
You must be aware of the other structural elements 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.
She notes the increasing burden on any lawyer representing the child, who may be the only lawyer in court, particularly if they are asked to take on cross examination of both parents!:
It is a tricky, uncomfortable and exhausting task. Particularly where, as I recently was, counsel for the child is tasked with asking questions sequentially on behalf of both parties of the other, as well as (eventually) her own. The burden on an advocate of asking questions from three metaphorical vantage points in turn is significant.
Common pitfalls if the court decides to transfer residence
What’s the 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 local 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.
In October 2019 I wrote an open letter to the President which was signed by lawyers, parents and experts.
We are writing to request an amendment to Practice Direction 25 B so that no person may be permitted to submit an expert report involving the assessment of any child unless that person meets minimum standards of professional practice, which we assert are as follow. The expert must:
submit to an external regulatory or supervisory body which requires adherence to a Code of Conduct
meet professional obligations as data controllers
provide clear and accessible formal complaints procedure
We are troubled by the number of experts involved in family proceedings who do not appear to meet some or all of these basic requirements.
I received a reply that this was being considered but COVID and the President’s ill health intervened and I haven’t heard back – this reminds me to chase.
But while waiting to see if the rules are amended I strongly urge you to bear this in mind when deciding who to instruct. I advise avoiding any organisation or individual who cannot meet such basic requirements of good practice.
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):
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;
whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
the manner in which a party has pursued or defended its case or a particular allegation or issue;
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 :
The child’s welfare is paramount, the court adopts a quasi-inquisitorial approach and there are many possible outcomes;
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’;
The court can assume that the parties are not generally motivated by malice;
The parties need to work together and one should not be stigmatised as ‘the loser’;
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.
The vast majority of adoptions in England and Wales are ‘non-consensual’ or ‘forced’ i.e. the parents did not agree this was the right thing for their child. Adoption is famously the last resort – ‘when nothing else will do’ and parents are given every opportunity to argue for some other outcome.
There remain however cases where mothers want to give up their babies at birth – a case of ‘relinquishment’. What happens when the mother has not told the baby’s father, and does not wish to? There can be a variety of reasons for this decision and the court will have to think carefully about what to do. It’s often likely that family secrets cannot be kept over time
Adoption is really important and significant for the child and for other family members. Therefore a mother cannot by herself take a unilateral decision to keep the adoption a secret – the court must ask what the child would think later in life if he or she found out the other relatives weren’t told.
The LA should make an application as soon as possible under Part 19 of the Family Procedure Rules for the court to determine if attempts should be made to identify the father or other family members and assess them as prospective carers.
The court must first establish the facts as clearly as possible, which is not always easy when the available information inevitably going to be one sided. Once the facts have been investigated the court has to strike a balance between the various issues. The child’s welfare is important but NOT paramount, as is the case in other decisions about the child’s upbringing.
Para 87 of the judgment sets out agreed ‘best practice’ guidance about the extent and nature of the inquiries the LA should make when a parent wishes to relinquish a baby for adoption.
It isn’t possible to devise a ‘test’ to decide who gets notified but the relevant case law shows that the following factors are likely to be relevant. This list is of course, not exhaustive – every case is different.
If the father has parental responsibility for the child, he is automatically a party to the proceedings and very compelling reasons are needed to say that he can’t be told about the plans for adoption
If the father or other relatives have an established family life with the mother or child then their Article 8 rights are engaged, and again very good reasons will be needed not to tell them.
The court must look at the substance of the relationship between the parents and the significance of the relatives. For example – were the parents in a long relationship? Or more fleeting? Was the child conceived in circumstances where the mother did not give consent?
Is a family placement a realistic alternative to adoption? If a family placement isn’t likely to be worth investigating or notification may cause significant harm, this operates in favour of maintaining confidentiality.
the impact on the mother or others – if the child was conceived as a result of a rape then there could be very serious consequences. But excessive weight shouldn’t be given to short term difficulties of embarrassment or ‘social unpleasantness’.
Cultural and religious factors – these could increase the risks of notification but also under pin the importance of the child being in a family placement.
Does the court know who the father/family members are? Notification can only take place if there is someone to notify. It is difficult to see how a mother can be forced to give up this information if she refuses. But in some cases it maybe worth trying to find out.
The impact of delay – investigation of other family members will inevitably take time and the court needs to consider what impact that might have on the child, such as losing a particularly suitable adoptive placement.
Reasons given not to inform the father
Mother A
She has a history of depression for which she takes medication and did not feel physically or emotionally capable of caring for him.
The father has also suffered with mental health issues.
She had terminated two previous pregnancies, both by A’s father, with his agreement.
He would agree with the decision for A to be adopted as he would not want to be involved in the child’s life.
Her own mother would agree with the decision to adopt A. She too has mental health issues and her brother has learning difficulties. Other maternal family members are too old to care for A.
Mother B
If she cannot look after B herself, she would rather she was adopted than be placed in the care of her family, so that B should not experience the abuse she herself suffered.
She is scared of her family’s reaction if they found out that she had a child outside wedlock with someone of a difference race and cultural heritage.
The family would therefore be unlikely to respond positively to being told of B’s existence, and it would cause them needless upset and distress.
An assessment of her family would be likely to be negative and little benefit would be gained.
The father (the first man so named) did not want to play any part in the baby’s life and even booked a termination for the mother. He was violent towards her while she was pregnant. He is involved with drugs and gangs and is currently serving a long prison sentence. She is scared of what he would do if she shared information about him with the local authority.
Mother C – who said her child had been conceived by rape
Caring for C would remind her of the rapes.
She and the father have an unconventional relationship. Although they are married he works away, was infrequently at home and rarely provided care for the children. They permanently separated in September 2018, following the rapes, but the father visits the home to see the children.
The father has a bad temper and on one occasion punched and damaged a door. He has been intimidating and controlling. She is scared that he would assault her if he found out that she had kept C’s birth a secret.
He would humiliate her by informing members of the local community. She would then have to leave the area with all her children.
He would not be willing or able to care for C.
There is no other maternal or paternal family member who would be willing or able to care for C.
The Court decided that other relatives must be told in all cases – despite the very distressing circumstances of C’s conception, her father had parental responsibility for her. This indicates that very serious reasons are necessary to justify not informing other relatives – the mother’s desire not to tell anyone is important, but it can rarely be determinative.
Keira Bell’s case, which began on October 7th 2020 has provoked a lot of comment about the issues of children and their capacity to consent to medical treatment. This is an attempt to provide a quick over view in easy to understand language. If you are interested in this area in greater detail, I set out some ‘further reading’ at the end of this post.
Medical treatment is only lawful if given in an emergency or with informed consent.
The case of Montgomery (Appellant) v Lanarkshire Health Board (Respondent) (Scotland) [2015] UKSC 11 deals with what risks about birth should have been shared with an adult patient – but is a useful discussion of the general parameters of what can be meant by ‘informed consent’ – patients do not have the medical knowledge of doctors, may not know what questions to ask. Doctors have a duty to reveal and discuss ‘material’ risks with a patient.
At para 77 the court comments approvingly on 2013 guidance to doctors:
Work in partnership with patients. Listen to, and respond to, their concerns and preferences. Give patients the information they want or need in a way they can understand. Respect patients’ right to reach decisions with you about their treatment and care.”
In a genuine emergency, doctors are unlikely to be penalised for treating a patient on the spot. In all other cases, medical intervention to which the patient does not consent is likely to be a crime.
Someone is said to lack capacity if they can’t make their own decisions because of some problem with the way their brain or mind is working. This could arise due to illness, disability or exposure to drugs/alcohol. It doesn’t have to be a permanent condition.
Some people lack capacity because their disability or injury brings them under the terms of the Mental Capacity Act and they cannot understand or weigh up the necessary information. These cases may have to go to the Court of Protection so the Judge can decide what is in their best interests.
Some people lack capacity because they are a child. A child is a person aged between 0-18. While most people would agree that a child aged 4 is unable to make any serious decisions on his own, the waters get muddier the older a child gets, as their understanding and desire for autonomy increases.
A child over 16, who doesn’t have any kind of brain injury or disability, is presumed to be able to consent to medical treatment as if an adult, under the Family Law Reform Act 1969.
Children under 16 may have capacity if they have enough understanding of the issues – this is called Gillick competence, from the case of the same name.
Adults who have parental responsibility for a child can give consent when a child cannot. However, the older the child gets, the more likely there is to be tension between what the adult and child think is best.
If the child, parents or doctors cannot agree about what treatment is best, then this has to come before the court to decide. A very sad example of this which got a lot of media attention, is the case of Alfie Evans, a toddler whose parents disagreed very strongly with the medical advice that his life should not be prolonged.
Applying the basic principles to the Bell case
I have seen some very odd comments about this case. However, first – if it is correct that Bell’s lawyers are arguing that NO child ever could consent to taking puberty blockers, I agree this is a bold submission and would certainly seem to be moving away from the clear statutory recognition of the likely autonomy of the 16 year old child. It may be that this submission rests on the grave concerns about the experimental nature of such treatment – and certainly the Tavistock does not seem to be able to provide the court with much if any hard data about the longer term consequences of this.
But any suggestion that the Bell case will somehow ‘destroy’ Gillick competence and deny 15 year old girls the right to contraception or abortion, is simply wrong.
The first and basic point is that Gillick was decided by the House of Lords – now the Supreme Court. The High Court has no power to change or alter the decision of the Supreme Court. Second point is that even if Bell’s case does succeed in getting a declaration from the High Court that NO child can ever consent to taking puberty blockers for transition, this will not impact other areas of decision making for children about medical treatment.
This is because the nature and quality of such treatments is well known and researched. It is therefore possible to weigh up the consequences, benefits and risks, in a way many would argue is simply impossible for puberty blockers given to aid ‘transition’ rather than to deal with precocious puberty.
When the nature and quality of such treatments are not known and doctors are unhappy to offer it, or a child (or parents) is refusing consent to a treatment that the doctors say is essential, then the matter will need to come to court.
Conclusion
I await the judgment in Bell with very keen interest. It will certainly need to cover all the areas I briefly touch on above, and hopefully will make such vital issues much clearer for many.
I accept a small minority of children DO need access to puberty blockers to prevent the development of sex characteristics they find very distressing. But I think they will be a tiny minority. I think the evidence to dates shows very clearly the impact of some kind of social contagion around issues of ‘gender identity’ which has led to staggeringly high numbers of children seeking ‘transition’ as a cure all for their emotional distress.
While I do not agree that NO child is capable of consenting to take these drugs, I certainly agree that the evidence base which will inform them of the risks and benefits is lacking, and dangerously so.
EVERY child should be given the right information in order to make these decisions.
"That children are not capable of giving informed consent to undergo a type of medical intervention about which the evidence base is poor, the risks and potential side-effects are still largely unknown… is the common-sense and obvious position."https://t.co/9sS1oE2rnu
Imogen (No. 6) [2020] FamCA 761; (10 September 2020)
This is a post by Sarah Phillimore.
This is a case from the Family Court in Australia – so of interest to those of us in England and Wales as our jurisdictions share a common history. It is a case that makes much of Gillick competence which is certainly a familiar domestic concept and I have written about it in more detail here. One key difference however is that Imogen was over 16 years old – therefore if this was a case in England or Wales, she would be considered competent to consent to medical treatment as if she were an adult, by virtue of the Family Law Reform Act 1969.
Imogen was born a boy called Thomas. She was diagnosed with Gender Dysphoria and was taking puberty suppression medication. When she was aged 16 years and 8 months old, she wished to move to ‘stage 2 gender affirming hormone treatment ‘. Her father supported this but her mother did not, disputing both the diagnosis of Gender Dysphoria and that Imogen was Gillick competent, i.e. able to make the decision to take hormones. The mother wanted Imogen to have therapy, rather then medical treatment.
Both the Australian Human Rights Commission and the Australian Attorney General were intervenors in the case, so its importance is clear. There was also an Independent Children’s Lawyer (ICL).
The court had a variety of questions to grapple with. If there is a dispute about medical treatment for an adolescent, was it mandatory to make an application to court to resolve that dispute? If Imogen was Gillick competent – could she make her own decision without her parents’ consent? If the court had to resolve the dispute then what was the legal test?
The court found that where there was such a dispute about the existence of a medical condition or the need for treatment, it was mandatory to make an application to the court – and interestingly there was official guidance that got the law wrong about that. The court decided that the test was what was in Imogen’s best interests – and it was for her to receive the treatment she wanted.
The discussions in this case are very relevant for every common law jurisdiction – there has been a staggering increase in recent years of the number of children wishing to ‘transition’ from one sex to the other and some interesting legal actions on the horizon, criticising the swiftness with which children are put on the path of ‘affirmation’ that leads to medication and surgery.
What is the best way to treat children with Gender Dysphoria?
The court acknowledged that this case was taking place within a wider debate about treatment for children with gender dysphoria, but the court was focusing on what was best for Imogen. Expert evidence was heard which was split roughly into three camps.
Imogen’s treating medical practitioners followed “The Australian Standards of Care and Treatment Guidelines: For trans and gender diverse children and adolescents” (“the Australian Standards”) which adopted a multi-disciplinary approach to treatment using gender affirming hormones.
The mother relied on an expert psychiatrist Dr D’Angelo, who advocated a more conservative approach, preferring psychotherapy rather than medication.
Reference was also made to the “Informed Consent Model” where general practitioners are willing to prescribe gender affirming hormone treatment to 16 and 17 year old adolescents without knowing whether their parents or legal guardians consent.
It was clear that Dr C – Imogen’s treating psychiatrist – and Dr D’Angelo adopted “fundamentally different diagnostic frameworks, methods, and conceptualisation of the experience of Gender Dysphoria”.
The court – annoyingly – describe ‘Gender Dysphoria’ at para 22 as
Gender Dysphoria is a term that describes the distress experienced by a person due to incongruence between their gender identity and their gender assigned at birth.
This conflation between sex and gender is very typical and has not assisted clarity in the general debate about the proper approach to a child who rejects the sex with which they were born.
The Australian Standards provide (at page 11) that the optimal model of care for trans and gender diverse adolescents who present to services involves a coordinated, multidiscipline team approach. There are two stages to treatment – Stage 1 is ‘puberty suppression’ via gonadotrophin releasing hormone analogues (GnRHa) in order to halt progression of physical changes such as breast growth or voice deepening. Stage 2 is ‘gender affirming hormone treatment’. Some of the effects of this medication are irreversible and likely to lead to the child becoming infertile.
The court noted at paragraph 27 that the Australian Standards gave incorrect guidance as to the law about when an adolescent could consent to stage 2 treatment – an interesting parallel to the situation in England and Wales where a number of official guidances around treatment of trans children are being challenged as unlawful.
At page 7, the Australian Standards state, “current law allows adolescent’s clinicians to determine their capacity to provide informed consent for treatment. Court authorisation prior to commencement of hormone treatment is no longer required”… “…[a]lthough obtaining consent from parents/guardians for commencement of hormone treatment is ideal, parental consent is not required when the adolescent is considered to be competent to provide informed consent”.
Further investigation of Gillick competence.
Australian courts have adopted the approach explained by the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL 7; [1986] AC 112, that the parental power to consent on behalf of a child diminishes as the child’s capacities and maturities grow: a child is capable of giving informed consent, and a parent is no longer capable of consenting on the child’s behalf, when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed.
However, at paragraph 29, the court noted that regardless of the child’s Gillick competence, its permission was required for non-therapeutic procedures, in particular those that required in combination:
invasive, irreversible and major surgery;
a significant risk of making the wrong decision, either as to a child’s present or future capacity to consent or about the best interests of a child who cannot consent; and
Where the consequences of a wrong decision are particularly grave.
The case of Re Kelvin, found that both stages of treatment were therapeutic and therefore, if the child, the parents and the medical practitioners agreed the child was Gillick competent, there was no need to involve the courts – the child could decide what treatment they were willing to accept.
But the court was clear, at paragraph 35 that the matter MUST come before a court if a parent or doctor could not agree
If the child was Gillick competent
The diagnosis of Gender Dysphoria
or the proposed treatment for Gender Dysphoria
If the only issue in dispute was Gillick competence, the court would either declare the child competent or not – if competent, the child could consent to whatever treatment they liked.
BUT if there was a dispute about diagnosis or treatment, it was then up to the court to determine the diagnosis and decide what treatment was appropriate on the basis of what was in the adolescent’s best interests. Therefore, if the parents dispute the need for treatment, a doctor should NOT agree to provide it to even a Gillick competent adolescent without the authorisation of the court.
This is an interesting re-assertion of the parens patriae duty of the court – the protective and paternalistic jurisdiction it has over children to keep them safe from harm and certainly goes against the stated trend of current UK guidance that ‘parental responsibility’ is of little or even no importance against a child’s stated wish to ‘change sex’ – apparently even when the child is far too young for Gillick competence to be likely.
Why is it important to come to court to resolve these disputes? The Attorney General recognised two good reasons
Without the court’s authorisation, if a doctor gets it wrong about a child being Gillick competent, they risk criminal or civil liability for providing treatment, as the child cannot consent.
or a doctor may override the parental responsibility of the parent who does not consent, which puts the doctor in an invidious position.
Why is the finding of Gillick competence of an adolescent not determinative, if parents do not agree about treatment?
This is the key question, not only for this court but for all others who operate according to the principle of Gillick competence. If we are saying that an adolescent is competent to make their own decisions, why isn’t that an end to the matter? This is because the court retains the ‘parens patriae’ jurisdiction over a child – to act as if the child’s parent.
There was no disagreement, that the court had the power to make an order against the wishes of a Gillick competent child, but it was unusual. For example, In X and Others v The Sydney Children’s Hospital Network [2013] NSWCA 320; (2013) 85 NSWLR 294, the court did not allow a competent 17 year old Jehovah Witness to refuse blood products which were potentially lifesaving. However, this was the only case identified where a court has overruled the views of a Gillick competent child to impose treatment. Other cases involving anorexia nervosa and treatment for drug rehabilitation involved children who were not Gillick competent (Director General, Department of Community Services v Y [1999] NSWSC 644; Director General, Department of Community Services v Thomas[2009] NSWSC 217; (2009) 41 Fam LR 220).
No case was identified where a court had refused to authorise therapeutic treatment where a Gillick competent child had consented.
At para 59 the court was clear it should determine the dispute about the nature of the treatment to be given and in doing so the court should have regard to the best interests of the child as the paramount consideration and give significant weight to Imogen’s views in accordance with her maturity and level of understanding (Re Jamie, per Bryant CJ at [140](f)).
There is an interesting suggestion at para 57 about
the proliferation of academic and other writings since Re Kelvin and the emergence of alternate thinking about treatment and questions arising from the state of knowledge in respect of the long-term implications of current medical treatment for Gender Dysphoria.
Which suggests the court was certainly open to considering whether Stage 2 treatment was really therapeutic after all.
The Informed Consent Model.
The court went on to consider the legality of this.
Dr C gave evidence that “the Informed Consent Model” of care in Gender Dysphoria is being adopted by an increasing number of medical practitioners. This model sees general practitioners proceeding with the prescription of gender affirming hormone therapy to adolescents over 16 years of age who express the desire to do so and who are assessed by the general practitioner as being able to give informed consent to the treatment, without the general practitioner making any inquiry as to whether or not the parents or legal guardians of the adolescents give their consent. Dr C opines that there is confusion in respect of the legality of the Informed Consent Model.
The court was very clear. This was not lawful. See para 63
This judgment confirms the existing law is that any treating medical practitioner seeing an adolescent under the age of 18 is not at liberty to initiate stage 1, 2 or 3 treatment without first ascertaining whether or not a child’s parents or legal guardians consent to the proposed treatment. Absent any dispute by the child, the parents and the medical practitioner, it is a matter of the medical professional bodies to regulate what standards should apply to medical treatment. If there is a dispute about consent or treatment, a doctor should not administer stage 1, 2 or 3 treatment without court authorisation.
Conclusion
This re-affirmation of the importance of parental responsibility and court oversight is very important. Both have run the risk of being over looked or even over ridden by some who push an ‘affirmation model’ very insistently, to the extent that any challenge or even mild objection is characterised as ‘hate’ and ‘bigotry’. It will be interesting to see how in our jurisdiction, the Family Law Reform Act may shine a different light on the statutory competence of children aged over 16.
I concede there is a distinction between a child who seeks life changing treatment and a child who refuses life saving treatment, but we must surely all be able to agree that for anyone, serious surgery or medication must only be accessed via valid consent.
In the judgment, some very interesting discussion then follows about the emerging literature in the field of Gender Dysphoria and how to treat it – although I wonder if the reliance on ‘extremely high rates of suicide’ discussed below is a reference to now thoroughly debunked claims. But there can be no doubt at all that the way forward is by data and by discussion. It is not ‘transphobic’ or ‘hateful’ to care about the health of our children, both mental and physical.
In August 2019 the Federal Minister for Health wrote to The Royal Australian College of Physicians (RACP) seeking advice on the treatment of Gender Dysphoria in children and adolescents in Australia. The RACP responded on 5 March 2020.
In that response, the RACP noted that trans and gender diverse children and adolescents are a very vulnerable population, experiencing stigma and extremely high rates of depression, self-harm, attempted suicide and completed suicide. Importantly, the RACP described treatment for Gender Dysphoria as an emerging area of healthcare where existing evidence on health and wellbeing outcomes of clinical care is limited due to the relatively small number of studies, the small size of study populations, the absence of long-term follow up and the ethical challenges of robust evaluation when control (no treatment) is not acceptable. The College relevantly observes that similar limitations on the existing evidence of healthcare apply to other conditions which affect small segments of the population, such as rare cancers.
The College expressed the view that addressing gaps in the evidence base is important, although notes that further scientific evidence may take a considerable period of time to produce.In the meantime, the College supported the principles underlying the Australian Guidelines, and specifically the emphasis on the multidisciplinary approach to providing person-centred care which priorities the best interests, preferences and goals of the child or adolescent. The College recommends that treatment should be holistic, developmentally informed, child centred and individualised. In order to facilitate a higher level of informed consent, the College recommends that patients and families must be provided with information about the limitations of the available evidence regarding Gender Dysphoria and there should be informed discussion of the burdens and benefits of treatment and options in a way each child or adolescent can understand. The College points to differences across Australia in the access, funding and delivery of care and treatment for Gender Dysphoria. It recommends the development of a national framework for service provision and outcomes monitoring and believes that that is the best way to ensure consistency in the outcome of data collection across jurisdictions.
Further Reading
The right to be fully informed – This site collates and summarises the medical literature and legal issues surrounding puberty blockers so that parents and doctors can be more fully informed. The information should not be taken as medical advice.
I am writing this post because I am concerned that there is a strong view in certain circles that ‘parental alienation’ either does not exist or is very rare and used as a deliberate strategy by violent men to deny contact with children to the mothers they oppress.
I don’t agree that parental alienation doesn’t exist. There is abundant evidence that it does. Nor do I agree that falsely asserting parental alienation as a strategy is commonplace, although I am sure it does happen.
Therefore I find it concerning to see the very existence or importance of parental alienation ‘downgraded’ by a number of academics and lawyers – particularly when those academics are involved in the recent MoJ report into private law cases. I have set out my criticisms of and concerns about this report here.
I endeavour always to render my criticisms reasonable, balanced and evidenced. So it was surprising and rather shocking to be called a ‘troll’ on social media and accused of ‘picking on’ victim of DV by one of the academics involved in a literature review for the MoJ.
This is not a helpful response from anyone. It is a particularly bizarre and inappropriate response from someone with a seat at the table of political influence.
Archived link secured. https://t.co/7z0NAZ1zfl I think we all deserve answers about the polite and reasonable questions I have raised.
A pattern emerged in the family courts (England & Wales) of parental alienation (PA) raised as a response to domestic abuse claims, as proved in Dr Adrienne Barnett’s research published in January 2020. It resulted in devastating outcomes for mothers and children. The need for a child to maintain contact became a priority as we were subtly influenced to believe in a new stereotype; a hostile, vindictive mother; a woman scorned, one who used her child as a pawn. Domestic abuse was reframed by controlling, abusive fathers who denied their behaviour, lied about it and projected it onto bewildered, abused mothers. Fathers’ rights groups powerfully marketed the new stereotype. They cried from the rooftops;
“Mothers lie about abuse and cut off contact from deserving fathers; we are the true victims; there is a bias against us!”
Judges routinely minimised domestic abuse in the courtroom; mothers were disbelieved, dismissed and punished through the contact arrangements. Welfare reports were often carried out by unsuitable and underqualified assessors.
I don’t agree with this. It does not reflect my own experience of 20 years in the family courts. That others seem to have a profoundly different experience is worrying. I would like to know what explains the gulf between my understanding and theirs. Given that this will be impossible to achieve in a blog post, I will restrict myself here to addressing the issue of parental alienation as a ‘grand charade’.
What do the courts say about parental alienation?
Let’s look at just two examples from published court judgments. There are sadly many, many more. I hope even this brief discussion makes it clear that ‘parental alienation’ is a phenomenon that exists and which does tremendous harm. Both the alienating parents in these cases were mothers; that does not mean that this is a sex dependent failure of parenting. Fathers can and do alienate their children from their mothers. It is wrong regardless of the sex of the parent who does it.
The child D was born in 2005. Proceedings had been ongoing for over ten years, albeit with a four year respite from 2012 – 2016, and had cost a staggering amount of money for both parents – about £320,000 over ten years.
There was a residence order made in the father’s favour in 2011 and the mother’s application to appeal was refused in 2012. Following a relatively peaceful four years, the mother then refused to return D to his father’s care in November 2016 and the father did not see D again until March 2017. A final hearing was listed for April 2018 after the instruction of a psychologist.
in early 2018 D made allegations of a serious assault upon him by the father and contact against ceased. The police became involved but took no further action and the Judge granted the father’s application in August 2018 that D give evidence at the finding of fact hearing.
D gave evidence and was very clear, saying (para 74):
I just want a normal life, living in happiness with mum. I cannot go back to my father’s. I was promised by my mum and the police officer that dad wouldn’t hurt me ever again. Now, I am here in court because he hurt me bad. Why can’t I just have a life that isn’t based on court and stress? I just want a life that I can live not live in fear from, please.’
D’s guardian put forward a schedule of six allegations that D made against his father. The court noted the evidence of the psychologist Dr Spooner at para 85.
D presented with what seemed like a pre-prepared and well-rehearsed script of all the things he wanted to tell me about his father. He took every opportunity to denigrate him, his family and his partner. Each time I attempted to ask him about issues not related to his father, such as school, hobbies and so on, he quickly derailed himself and continued on his frivolous campaign of denigration.
The court heard a great deal of evidence from social workers and other experts about the alleged injuries suffered by D. It is disturbing to note how the Judge was not assisted by some of the evidence from the local authority, not least because the social worker who prepared the section 37 report was working from the assumption that everything a child said must be true.
The father denied assaulting D but had to hold his arms when D was being aggressive towards him. The Judge did not find any of the allegations proved; he found the father and his partner to be honest witnesses and this was a case where the mother was determined to ‘win’ at any cost. The judge found that she had deliberately alienated D from his father.
Analysis of what is meant by ‘parental alienation’
From paragraph 165 the Judge considered the issue of parental alienation. At para 169 he refers to the research Dr Julie Doughty at Cardiff University. She comments:
There is a paucity of empirical research into parental alienation, and what exists is dominated by a few key authors. Hence, there is no definitive definition of parental alienation within the research literature. Generally, it has been accepted that parental alienation refers to the unwarranted rejection of the alienated parent by the child, whose alliance with the alienating parent is characterised by extreme negativity towards the alienated parent due to the deliberate or unintentional actions of the alienating parent so as to adversely affect the relationship with the alienated parent. Yet, determining unwarranted rejection is problematic due to its multiple determinants, including the behaviours and characteristics of the alienating parent, alienated parent and the child. This is compounded by the child’s age and developmental stage as well as their personality traits, and the extent to which the child internalises negative consequences of triangulation. This renders establishing the prevalence and long-term effects of parental alienation difficult…’
At para 170 the Judge considers the CAFCASS assessment framework for private law cases. The assessment contains a 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 on 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.
In a recent report to the court, one of this country’s leading consultant child and adolescent psychiatrists, Dr Mark Berelowitz, said this: ‘this is one of the most disconcerting situations that I have encountered in 30 years of doing such work.’ I have been involved in family law now for 40 years and my experience of this case is the same as that of Dr Berelowitz. It is a case in which a father leaves the proceedings with no contact with his children despite years of litigation, extensive professional input, the initiation of public law proceedings in a bid to support contact and many court orders. It is a case in which I described the father as being ‘smart, thoughtful, fluent in language and receptive to advice;’ he is an intelligent man who plainly loves his children. Although I have seen him deeply distressed in court because of things that have occurred, I have never seen him venting his frustrations. It is also a case in which the mother has deep and unresolved emotional needs, fixed ideas and a tendency to be compulsive.
The Judge felt it was important for this judgment to be published, albeit heavily anonymised to protect the identities of the children.
My intention in releasing this judgement for publication is not because I wish to pretend to be in a position to give any guidance or speak with any authority; that would be presumptuous, wrong and beyond my station. However, this is such an exceptional case that I think it is in the public interest for the wider community to see an example of how badly wrong things can go and how complex cases are where one parent (here the mother) alienates children from the other parent. It is also an example of how sensitive the issues are when an attempt is made to transfer the living arrangements of children from a residential parent (here, the mother) to the other parent (the father); the attempts to do so in this case failed badly.
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.
Conclusions
Of course, the same criticisms can be made about this survey as I made about the MoJ survey. We have to be careful about the results of a survey conducted with the self selecting. The MoJ reassured itself this was ok because the wide ranging review of case law and literature supported the view of the self selecting respondents that family courts routinely ignore issues of violence.
The problem however, as I pointed out above, is when you have someone conducting your literature review who thinks that those who talk about parental alienation as a real thing are ‘trolls’.
It is my view that the case law abundantly supports the findings of the Good Egg Safety report. Parental alienation exists and it does enormous harm to the children and parents caught up in it. It is not restricted to women as perpetrators – but I am sad to say that in all the cases of parental alienation in which I have been involved over 20 years, the majority of those found to be perpetrators by the court were women.
It also does enormous harm to the rule of law and respect for court orders. Pretending it doesn’t exist or that it exists primarily as a strategic tool for abusive men to further their abuse is plain wrong. I suspect those who promote this theory know on some level how wrong they are, given the level of abuse and insults they throw at anyone who challenges them.
You may not like what I say. You may – with some justification I concede – accuse me of rudeness or abruptness in the way I say it. But I am no troll. That is a baseless, insulting assertion and it will not help your arguments gain or sustain any credibility whatsoever.
For those now asking in despair – but what do we DO about all this? I set out some suggestions in this post. But as many of them will involve a significant financial investment in both judges and court buildings, I do not expect to see any change in my life time. But I will continue to do what I can to promote honesty and openness in the public debate about such important issues.
See Re C (A Child) [2018] EWHC 557 (Fam) – Unsuccessful appeal to the High Court by a mother against a decision which transferred the residence of C, aged six, to her father, in light of the mother’s opposition to progressing C’s contact with her father. Permission to appeal was refused as being totally without merit.
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.
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.
The Cafcass Child Impact Assessment Framework (CIAF) sets out how children may experience parental separation and how this can be understood and acted on in Cafcass. The framework brings together existing guidance and tools, along with a small number of new tools, into four guides which Cafcass private lawpractitioners can use to assess different case factors, including:
Domestic abuse where children have been harmed directly or indirectly, for example from the impact of coercive control.
Conflict which is harmful to the child such as a long-running court case or mutual hostility between parents which can become intolerable for the child.
Child refusal or resistance to spending time with one of their parents or carers which may be due to a range of justified reasons or could be an indicator of the harm caused when a child has been alienated by one parent against the other for no good reason.
Other forms of harmful parenting due to factors like substance misuse or severe mental health difficulties.
The Empathy Gap 14th June 2020 – Commentary on Adrienne Barnett in “A genealogy of hostility: parental alienation in England and Wales”, Journal of Social Welfare and Family Law (Jan 2020). The paper discusses the role of parental alienation within the English and Welsh family courts.
The Empathy Gap 11th June 2020 – Commentary on “U.S. child custody outcomes in cases involving parental alienation and abuse allegations: what do the data show?”, By Joan S. Meier, Journal of Social Welfare and Family Law 42:1, 92-105 (2020)
In May 2019 a ‘3 month inquiry’ into issues of domestic abuse and applications to court about children, was announced by the Ministry of Justice. I expressed considerable scepticism at the time, not least scoffing about the wholly unrealistic timescales proposed.
In that at least I can see I was correct. The final report was published at the end of June 2020 so a 13 month process. Even that seems astonishingly quick to me. It is without doubt an impressive piece of work, covering a great deal of important and necessary conversations about the family justice system. All practitioners need to read it, digest it and think about it carefully .
I will not pretend that I am about to unpick it line by line. But I thought it might be interesting or helpful to share my immediate concerns.
In May 2019 I said this about the real problems facing the family court system:
Family courts are not the arenas for frightened or angry people. An adversarial court system that requires proof is a hard place to be for those who believe themselves to be or who actually are victims of violence. I quite accept that most of us entering into a relationship do not at the outset start gathering evidence of our partner’s appalling behaviour. One of the real evils of coercively controlling relationships is the very long time it can take to work out what is going on and to gather the resources and courage to leave. There appears to be widespread public ignorance about how the forensic process operates and how you prove an allegation in court. That is not anyone’s ‘fault’ but it is a great shame more people are not prepared to accept their lack of understanding before diving into the debate. But the elephant in the room is the removal of resources. Social workers and Cafcass need time and space to conduct investigations, to thoughtfully reflect, and to build relationships with parents. Courts dealing with private law disputes need to offer judicial continuity and swift fact-finding hearings – which currently doesn’t happen because we don’t have enough judges or courts. The removal of legal aid from private law family cases has led to a huge rise in the number of litigants in person, with obvious and serious problems for how cases are managed. This removal was endorsed by Parliament in 2012 with the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012. Research by Citizens Advice in 2015 stated what we all know to be true: “Restricted access to legal aid is one of the biggest barriers to support for victims of domestic abuse in England. In their work helping victims of domestic abuse, only 12% of advisers reported being unaffected by the changes that came into force from April 2013.
The aim of the report is to provide an understanding of how effectively the family courts identify and respond to allegations of domestic abuse and other serious offences, in cases involving disputes between parents about the arrangements for their children. These are known as ‘private law children proceedings’ because they are a dispute between private individuals and not any agency of the State.
The report sets out its summary and recommendations. The expert panel received ‘over 1,200 responses’ from individuals and organisations and held roundtables. The evidence focused on domestic abuse.
The report noted key themes
Resource constraints; resources available have been inadequate to keep up with increasing demand in private law children proceedings, and more parties are coming to court unrepresented.
The pro-contact culture; respondents felt that courts placed undue priority on ensuring contact with the non-resident parent, which resulted in systemic minimisation of allegations of domestic abuse.
Working in silos; submissions highlighted differences in approaches and culture between criminal justice, child protection (public law) and private law children proceedings, and lack of communication and coordination between family courts and other courts and agencies working with families, which led to contradictory decisions and confusion.
An adversarial system; with parents placed in opposition on what is often not a level playing field in cases involving domestic abuse, child sexual abuse and self- representation, with little or no involvement of the child.
I agree with much of this. But there are some things summarised there and discussed in greater detail in the body of the report which I find frankly surprising in any document co-produced with a number of senior laywers.
Pro contact culture and other curious statements
The Panel say this about pro-contact culture
Previous literature has identified the ‘pro-contact culture’ of the family courts and we have adopted this terminology as appropriate to capture the systemic and deep-seated nature of the courts’ commitment to maintaining contact between children and non-resident parents. A ‘culture’ describes the particular set of beliefs and behaviours (sometimes unconscious or taken-for-granted) of a group of people. Most institutions develop a distinctive culture over time, and the family courts are no exception. This does not mean that all members of the institution necessarily agree with or conform to all aspects of the culture. But it does mean that there is a strong pressure to conform, and that cultural change does not happen easily. ‘
The pro-contact culture’ is not some whimsy or consequence of submission to the patriarchy. It is the law. It has long been the law. It is enforced in various decisions of the European Court. I do not understand why the law is reframed here in clearly pejorative terms as a ‘culture’ .
Children have a right to a relationship with both parents, so long as they are safe. I agree however, that a system starved on resources and which operates on an adversarial platform may end up giving a crude prominence to the presumption that contact is in a child’s best interest.
I also reject and am astonished to see this comment about liaison with the criminal justice system:
Silo working can result in evidence of abuse accepted in one system, for example the criminal courts, not being acknowledged or effectively engaged with in the family court.
Police disclosure and findings of the criminal courts are vital pieces of evidence and never overlooked in any case where I am instructed. Of course, getting the information from the police quickly is another matter. Again an area where lack of resources make it very difficult for the family court system to do its job.
The Panel comments:
Many respondents reported that regardless of the particular circumstances, even where the most serious allegations of domestic abuse were raised, courts expected that parents would work together to facilitate contact arrangements.
Raising an allegation is not the same as proving it. Where serious allegations are made the court needs to determine them by way of a finding of fact. I accept, and this has been known for some time, that early findings of fact are often essential. An assertion of something another does not accept and which has not already been proved, is not a fact and never can be ‘a fact’.
We can ‘raise’ whatever allegations we like. To ask allegations to impact on the proceeses of a legal system they have to be proven. I am very surprised and uneasy to read a phrase like this in a document produced by the Ministry of Justice.
The value of self selective lived experience.
This is without doubt my key concern. I am worried that what I feared has come to pass. There was no scrutiny of the reliability of the accounts given to the Panel and yet such indivudal accounts represented the vast majority of responses to it. 87% of responses ‘in scope’ were from individuals with personal experience of private law children proceedings – mainly mothers and their families.
The report makes it clear the Panel ‘were unable to review individual case files’. But reliance on evidence from an entirely self selecting group apparently causes little concern as this was ‘supplemented with a literature review and a review of relevant case law.’ So I am not quite sure what the Panel mean when they later say ‘In practice, the large number of responses meant that the panel needed an extra six months to ensure that the evidence could be thoroughly analysed and reviewed’.
What exactly were they reviewing? Seeing case law and ‘literature’ through the lens of ‘lived experience’ that you accept as true without investigation sounds to me suspiciously like the seeds of a self fulfilling prophecy.
It is clear the responses from the lawyers were different to the responses from the mothers:
Submissions from legal professionals described their experience in cases involving abuse which varied in persistence and severity, whereas most mothers described relatively severe and sustained abuse, almost invariably involving coercive control.
No question appears to be raised as to why the lawyers saw things so differently. I think it is very important to robustly test assertions which are so serious. Such as this –
Respondents felt that orders made by the court had enabled the continued control of children and adult victims of domestic abuse by alleged abusers, as well as the continued abuse of victims and children. Many submissions detailed the long-term impacts of this abuse manifesting in physical, emotional, psychological, financial and educational harm and harm to children’s current and future relationships. Many respondents felt that the level of abuse they and their children experienced worsened following proceedings in the family court. There were concerns that efforts to report continuing abuse were treated dismissively by criminal justice and child welfare agencies because of the family court orders. Many respondents also highlighted the negative impacts felt by children who were compelled to have contact with abusive parents, and the burden placed on mothers and children to comply with contact orders compared to minimal expectations on perpetrators of abuse to change their behaviour.
Again, there seems to be no attempt to clarify the nature and status of the alleged victims and perpetrators. Were the ‘perpetrators’ referred to here FOUND TO BE SO in either a criminal or civil court? Or are we back in territory of allegations being raised? I have never known a case where a person found to have perpetrated serious abuse was simply left to get on with it and unsupervised contact ordered.
But I have experienced many cases where fathers never had direct contact with their children again after allegations raised about their behaviour by the children’s rmothers.
The Panel does recognise the limitations of its approach, but concludes that it doesn’t impact their ability to make robust recommednations
Nor can we tell how representative the submissions are of all court users and professionals. As with all inquiries, the individual and organisational submissions and engagement in the data gathering process were voluntary. There is therefore likely to be some selection bias. Individuals who are largely satisfied with the process and outcomes in the family courts may have less incentive to provide evidence. Similarly, professionals who work in the system may have more incentive to defend how the system operates. Nor can we test the accuracy and completeness of the accounts given. It is not possible to have an ‘objective’ account of what occurred in each case. Qualitative evidence presents the perceptions and views of individuals and organisations that respond. These views will be influenced by the attitudes, cultural context, organisational culture, specific role in the proceedings and individual biases of those providing evidence. They can also be subject to recall bias. The panel was well aware that submissions can be based on misunderstandings, misapprehensions or deliberate distortion as well as wishful thinking. Despite these inherent limitations, we are persuaded that the evidence gathered does identify systemic problems with how family courts deal with domestic abuse cases and cases raising other risks of harm in private law children cases. It is unlikely that the panel has managed to uncover only isolated mistakes or rare events. The evidence does point to issues affecting multiple cases across the system and with potentially serious effects, although we were also able to identify instances of good practice.
I think this is powerfully naïve. I am particularly concerned by this comment:
…majority with detailed descriptions that appeared to provide authentic accounts of individual experiences.
‘Appeared to provide’ just isn’t good enough when it is used to scaffold the following comments. This has never been my experience in any private law case over 20 years.
Many respondents argued that in ordering direct contact in the majority of cases, the court ignores, dismisses and systematically minimises allegations of domestic abuse and simply treats the case as if domestic abuse was of no continuing relevance. Too often, even where findings of domestic abuse are made, the submissions suggest that victims are told to ‘move on’ and to progress contact, even though the perpetrator has shown no or minimal effort to accept or engage with the findings made against them. Thus, the victim is left with the responsibility of ensuring that contact takes place, including liaison with the abuser, and sometimes against the expressed wishes of the child.
We can see how this is being interpreted beyond the Ministry of Justice and how the Panel’s willingness to accept the unverified accounts of Respondents may now play out.
“The Court Said” has already launched a petition. This is an organisation supported by a number of women with ‘personal’ experiences of the family court system. Two of these women are Samantha Baldwin and Victoria Haigh, both subject to serious findings in the family court about the harm they inflicted on their children and both enthusiastic self identified victims of the family court.
It is or should be abundantly clear that ‘personal’ experiences do not provide the whole story. And that those with axes to grind need to be treated with polite scepticism.
If the accounts of the Respondents to the Panel are simply accepted, its clear what The Court Said wants to happen now. I quote from the petition.
The government needs to launch an immediate case review and a mechanism for recourse for victims affected by the crisis. Thousands of children have been removed unlawfully from victims of Domestic Abuse with no prospect of reversing the situation. Many more thousands are living in fear with unsafe Court decisions impacting families dealing with a Domestic Abuser. Without recourse, this will continue. The report publishes the harms endured by survivor families in the Family Court system. It is time to right the wrongs and provide compensation for victims, whose lives, families and futures have been forever marked, or even destroyed by an unsafe decision in the Family Court. We call upon the government urgently to immediately review all cases that have gone before the proposed reforms, and the ones that will suffer during the transition to reform. We call upon the government to reverse decisions where possible and provide compensation to those affected by the crisis. #thecourtsaid
Conclusion
The Panel Report sets out a lengthy list of recommendations and hopes, some of which sound sensible, some a little more optimistic – the Panel should probably have considered a little more carefully the impact of the ECHR on their recommendation to end a presumption of parental involvement for e.g.
But no one could argue in good faith with efforts to make sure that the wishes and feelings of children are properly heard and they are not put under pressure by either parent to toe any particular line.
But I am afraid I cannot read something like this without a hollow laugh
The panel hopes that its recommendations will empower judges, lawyers, Cafcass, Cafcass Cymru and other family justice professionals to work to their best potential in private law children’s proceedings, and above all, that its recommendations will benefit children and parents experiencing domestic abuse.
If parents in the system don’t have lawyers, if there is no where in the court bulding to sit and talk, let alone wait in safety, if CAFCASS don’t get the time and resources they need to do their job properly, if anyone’s account is simply accepted without challenge, all of this is meaningless.
Resources are rightly identified in this report as a major stumbling block to any effective change and I agree wholeheartedly with this
The panel believes that the shortage of resource affects the whole system, but is most concerning for domestic abuse cases, which are likely to be more resource-intensive to address than non-abuse cases. Safeguarding requires time and resources to do a detailed and careful risk-assessment; the need for special measures requires adequate court facilities; fact-finding hearings require additional judicial time; and additional interventions may be required to make any child arrangements safe. This all costs money. The scarcity of resources mean that the system finds it difficult to address the additional demands presented by domestic abuse cases:
So what will be done about that?
Nothing. No doubt any spare cash in the system will now go to setting up further serious case reviews as is urged by ‘The Court Said’. This seems to be how we roll now as a nation.
I hope I am wrong. But I doubt I am. Let’s meet in a year’s time and see what came to pass.
The Empathy Gap 14th June 2020 – Commentary on Adrienne Barnett in “A genealogy of hostility: parental alienation in England and Wales”, Journal of Social Welfare and Family Law (Jan 2020). The paper discusses the role of parental alienation within the English and Welsh family courts.
The Empathy Gap 11th June 2020 – Commentary on “U.S. child custody outcomes in cases involving parental alienation and abuse allegations: what do the data show?”, By Joan S. Meier, Journal of Social Welfare and Family Law 42:1, 92-105 (2020)
This post considers how the court should deal with disputes between those who have parental responsibility, about whether or not a child should be vaccinated. Vaccines are routinely administered in England; see Public Health England’s guidance in ‘The Green Book: Information for public health professionals on immunisations’. Despite the routine nature of vaccination, there remains a significant minority of those who object, some fearing that vaccines cause harm. The Court of Appeal however has given a very clear ruling that there is no medical evidence to support an argument that these routine childhood vaccines are harmful, and that local authorities do not need to seek the approval of the High Court before agreeing to vaccinate children in their care.
In February 2020 there was a decision in care proceedings about parents who objected to their child being vaccinated, which can be found at [2020] EWHC 220 (Fam). The Judge commented that the father was “driven by the fundamental belief that neither the court nor the State, through the arm of the Local Authority has any jurisdiction to take decisions in relation to his children”.
The Judge heard medical evidence about the benefits of immunisation in general and in particular with regard to the child before him. He found that vaccination should not be characterised as ‘medical treatment’ but rather ‘a facet of public preventative health care intending to protect both individual children and society more generally’.
The Judge was satisfied that the local authority could authorise the vaccination of the child under section 33(3) of the Children Act 1989. This is significant, as previous cases (see Re SL (Permission to Vaccinate)[2017] EWHC 125 ) had set out that this issue had to be decided using the ‘inherent jurisdiction’ of the court – a jurisdiction which can only be exercised by the High Court or by Circuit Judges with special authorisation. This has the potential to take more time and cost more money to get a decision.
Therefore the Judge felt it appropriate to allow his decision to be appealed pursuant to the Family Procedure Rules 30.3(7) – ‘contradictory decisions on the substantive issue’
By the time the matter got to the Court of Appeal, no one was arguing that the child should NOT be vaccinated but everyone wanted clarity about what route people needed to use in any future cases like this.
The Court of Appeal decided that in order to make the right decision about the route to take, it was necessary to consider some broader questions, and in particular whether or not vaccination is to be considered ‘a grave or serious matter’ or should be regarded as ‘medical treatment’.
These questions also had to be considered in two different contexts: ‘public law’ proceedings (where the local authority shares parental responsibility with the parents) and ‘private law’ proceedings (where only individuals such as the mother and father share PR).
As a general principle, the State should be slow to interfere with how parents exercise their rights and duties with regard to their children and respect their right to do so, provided that they don’t put the child at risk of significant harm.
Giving consent to having a child vaccinated is clearly an exercise of parental responsibility. Most consider the decision to vaccinate ‘reasonable and responsible’. However it is not a legal requirement. Therefore a refusal to vaccinate your child and nothing else would be very unlikely to be considered ‘significant harm’ to the extent that the State could interfere and apply for a care order under section 31(3) of the Children Act.
The child in the care of the local authority
The starting point for a child in local authority care is section 33 of the Children Act 1989. This gives the LA parental responsibility alongside the parents and the power to ‘override’ the parents provided that what it proposes is necessary to safeguard the welfare of the child. The LA cannot however change a child’s religion or name, or take the child out of the country using this section.
This applies to ‘interim’ and ‘final’ care orders. However, when decisions ‘with profound or enduring consequences’ needed to be made – such as serious medical treatment – the general view is that it was not right for the LA to use section 33 to override a parent’s wishes without further scrutiny – the matter needed to come before the High Court to be resolved.
So – is consenting to vaccination something that a LA can do without the High Court’s permission? Or is this ‘serious medical treatment’?
Medical evidence about the benefit of vaccines is clear
The Court of Appeal first examined the current established medical view – routine vaccination of children is not only in the best interests of the children but also the general public.
The Court of Appeal acknowledged that most – but not all – of the concerns about the safety of vaccinations relate to the MMR vaccination. This was introduced in 1988. Concerns arose that there was a link between the MMR vaccine and autism following the publication of a paper in The Lancet by Dr Andrew Wakefield. This attracted widespread publicity and caused a drastic reduction in MMR vaccination rates and corresponding increase in cases of measles. It then transpired that Dr Wakefield had not declared a number of conflicting interests and by 2004, 10 of the 12 co-authors of the 1998 paper had withdrawn their support for the claimed link with autism.
Dr Wakefield was then investigated by the General Medical Council for misconduct and in May 2010 he was struck off the medical register and The Lancet formally retracted his paper. No mainstream medical opinion now accepts a link between vaccination and autism.
The Court of Appeal accepted that the medical evidence:
overwhelmingly identifies the benefits to a child of being vaccinated as part of the public health initiative to drive down the incidence of serious childhood and other diseases.
The Court of Appeal were very clear that this short recitation of such historical events was necessary to ‘bring an end’ to the parade of expert witnesses in cases involving vaccination, to demonstrate its medical benefits, unless a child has ‘an unusual medical history’ – see for example in Re C and F (Children)[2003] EWHC 1376 (Fam).
There could be other issues than purely medical over vaccinations which impact on a child’s welfare – for example the parent’s religious belief – but the Court of Appeal have decisively put to bed any lingering doubts about the medical benefits of vaccination.
Regardless of benefit – are vaccines ‘serious medical treatment’?
Regardless of its medical benefit, were the parents right to say that only the High Court could resolve a dispute between parents and a local authority? There have sadly been very many cases where care proceedings and complex medical treatment intertwine and the High Court has been asked to intervene.
The most difficult and controversial cases have been where care proceedings were used to bring parents before the court over disputes about medical treatment where the parents are otherwise ‘unimpeachable’. The Court of Appeal did not approve of this. The more usual route in cases of dispute over serious medical treatment, is via the NHS Trust responsible for treating a child applying to invoke the court’s inherent jurisdiction. in such applications, there is no need to discuss threshold criteria or ‘blame’ the parents and the sole criterion is the welfare of the child.
The Court of Appeal acknowledged that some previous cases could be interpreted as denying that the LA had the power to authorise ANY medical treatment. But, if that was the correct interpretation – then those cases got it wrong.
The Court of Appeal then turned to examine how vaccination cases in particular had been dealt with by the courts. It was noted that in a previous case the hearing had lasted two weeks with extensive medical evidence and a judgment of 370 pages which concluded that it was in the best interests of the healthy children to be vaccinated. That decision was appealed and the appeal dismissed. See In Re C (Welfare of Child: Immunisation) [2003] EWCA Civ 1148; [2003] 2 FLR 1095) However, further cases continued to hear extensive expert evidence.
The Court of Appeal stated that by the 2010 at the very latest, there has been no evidential basis for suggesting a link between MMR and autism and other vaccines which are routinely given to children have not been subject to the same high profile concerns about their safety.
The Court of Appeal did not think it mattered to call vaccinations ‘medical treatment’ or ‘preventative health care’ – what mattered is whether vaccinations were ‘grave’ and ‘serious’ in the context of the exercise of PR by a local authority. This was soundly rejected:
I cannot agree that the giving of a vaccination is a grave issue (regardless of whether it is described as medical treatment or not). In my judgment it cannot be said that the vaccination of children under the UK public health programme is in itself a ‘grave’ issue in circumstances where there is no contra-indication in relation to the child in question and when the alleged link between MMR and autism has been definitively disproved.
Cases involving disputes between parents
The route for parents who cannot agree about vaccination is to apply for a Specific Issue Order under section 8 of the Children Act 1989 – see Thorpe LJ in Re C (Immunisations) at paragraph [17] where in 2003 he expressed the view that immunisations were part of a ‘small group of important decisions’ where if those with PR could not agree, it should come before the court. The Court of Appeal wondered if now in 2020 this could still hold good given that all evidence unequivocally supports the recommendation of Public Health England that vaccinations benefit children and the wider society. However, the Court of Appeal declined to offer a definite view about this.
However, the reality is that if parents can’t agree in discussion or more formal mediation, neither has primacy over the other and they have no option but to come to court for resolution.
This is very different to the situation where a care order exists, as in that situation Parliament has given the LA the power to override a parent unless its a decision of such magnitude that it must come before the High Court.
Warning to local authorities
However, the Court of Appeal sounded a note of caution, warning the local authority that it must involve parents in decision making and section 33 CA 1989 was not an invitation to ‘ride rough shod’ over parents. If the parents do not agree with the the LA decision to consent to vaccination, they can make an application to invoke the inherent jurisdiction and apply for an injunction under the Human Rights Act 1998 to prevent vaccination before the matter comes before the court.
The Court of Appeal decision does not in any way diminish the importance of parental views where there is a real issue about what decision will promote a child’s welfare. However, the weight to be given any objection is not decided by how insistently it is made, but according to what substance it has.
The pressure on the family justice system is already serious enough without devoting weeks of High Court time to reinventing the vaccination wheel.
Two week rapid consultation on remote hearings in the family court now launched. https://t.co/9h5JltW25s This whole debate has shone an interesting light on what we, as a society, think the courts are FOR.
This is a post by Sarah Phillimore. The Nuffield consultation is open until April 28th 2020, so please comment.
At the time of writing – April 17th – the UK is in its 3rd week of ‘lockdown’ in response to the global pandemic and efforts to reduce the spread of COVID 19. Courts have been operating remotely for a number of weeks now and some of the initial problems and panic have been ironed out. However, there are still some worries, in particular how this is impacting on lay clients. Many parents in care proceedings already face serious disadvantages in terms of ready access to technology or even a quiet and safe space in which to sit to engage in a remote hearing.
This is an issue of significance and importance – Tortoise Media organised a digital ‘ThinkIn’ for the Nuffield Family Justice Observatory.
Polly Curtis of Tortoise commented
Under lockdown there has been an 800% increase in court hearings being conducted by telephone or video call. The Nuffield Family Justice Observatory has been asked by the President of the Family Division to conduct a rapid consultation on the use of remote hearings in the family courts to inform future guidance. Join us to share your experiences: What has worked well? Do you have concerns? What improvements could be made?
What has worked well?
My experience is still quite limited; I have done a number of directions hearings where everything was more or less agreed; I haven’t yet cross examined anyone as the contested hearings lined up in my diary have fallen away. But for those hearings where the issues were limited and well known, where there wasn’t a need to put questions to a lay witness or navigate a massive bundle, it seemed to go ok. It was great not to have to travel hours to and from court for a 20 minute hearing, and the platforms I have used – Zoom and Skype for business – appeared to work reasonably well, apart from one complete and inexplicable failure of my microphone (and yes, I HAD unmuted).
Do you have concerns?
Yes. Although I haven’t yet conducted a contested hearing remotely, my experiences so far make me doubtful that its going to be as easy or as straightforward as some make out.
The significant problem in many family cases is going to be the inherent vulnerability of the lay clients. When meeting in person in court, we can talk, I can reassure, I can explain, I can see or be told immediately if my client is getting distressed or needs a break. All of this is gone with remote working. During one hearing I was taking client’s instructions via What’s App while trying to listen to the submissions of my opponents and formulate my own response. Yes, this is what happens in court hearings that are not remote – an important skill as a trial lawyer is being able to deal with client’s scribbled or whispered instructions while trying to follow the arguments of your opponent.
But there was something very draining about the remote experience that made it ten times more exhausting. That particular hearing lasted no more than 2 hours. I felt afterwards as if I had an entire day in court. I don’t yet know if this is because I am new to the experience and finding it stressful or whether a remote hearing does strip away some essential elements of good communication and that this extra effort will remain a feature of such work.
What improvements could be made?
Bizarrely, I thought I would be most concerned about technology and its availability, but my three week immersion in this new world has flagged up other difficulties I had not anticipated. From my experience what I would like to see most urgently is an end to the almost incessant flow of ‘guidance’ or comments about ‘guidance’. I appreciate that everyone is doing their best and this is for some people a way to cope with uncertainty. I also hope its an inevitable product of this brand new and very rapid change to all our circumstances.
But its oppressive, its confusing and instead of making sure that it directs people to consider what is important, I think it risks having the opposite effect – the more people expect ‘guidance’ to give them the answers, the less they tend to think about the case in front of them.
I think we need to keep first principles in mind
The child’s welfare is paramount
Delay should only be permitted if planned and purposeful BUT
Hearings must be fair – and there is often a lot to unpack in that one
I am supported in this analysis by para 24 of the President’s judgment in P – see link below in Further Reading
There is often tension between all those principles But every family case offers a huge array of different circumstances which need to be weighed and considered. One final hearing of mine was adjourned for a variety of reasons, not all to do with the remoteness of the hearing – but it was clear that remoteness weighed more heavily on considerations about the parent’s need for assistance to understand and participate in the proceedings. While hearings remain remote we need to be focused much more clearly on the impact of this on the lay client and whether they can participate in a meaningful way.
The Guidance from MacDonald J (see further reading below) is detailed and impressive and begins with the reminder from the President of the Family Division that we must not lose sight of the ‘primary purpose’ of the family court – to deal with cases justly. The Guidance offers a particularly pertinent example of a Court of Protection case that the Judge, journalists and lawyers all felt went very well indeed – but the lay person had a very different experience.
It all, in the end, comes down to what we think our courts are for. If the aim is to get the slickest and most efficient system up and running, then remote working offers a lot of advantages. But I hope most would agree that process should not be elevated above the people who must suffer that process.
It will be interesting to see how the Digital Courts develop when (if) we are ever out of lockdown. I can see ways that technology can be used to great effect and one positive at least from all of this is we will have speeded up immensely our willingness to embrace remote working.
Some really useful tips for lawyers about making the process of remote hearings more efficient.
Can we have similar level of detailed discussion directed at lay clients who may have no access such technology. How do they participate? https://t.co/lO8sDVQ9aZ
MUNCIPIO DE MARIANA & ORS v (1) BHP GROUP PLC (FORMERLY BHP BILLITON) (7) BHP GROUP LTD (Second to Sixth Defendants not party to the proceedings) (2020)
[2020] EWHC 928 (TCC) QBD (TCC) (Judge Eyre QC) 20/04/2020 CIVIL PROCEDURE ADJOURNMENT : CORONAVIRUS : DISPUTING THE COURT’S JURISDICTION : EXTENSIONS OF TIME : REMOTE ATTENDANCE : TECHNOLOGY The court gave guidance on the approach to applications for an adjournment and applications for extensions of time due to the Covid-19 pandemic. The first and seventh defendants applied for an extension of time, due to the effect of the Covid-19 pandemic, for service of evidence in respect of the claimants’ application to stay the proceedings on jurisdictional grounds.
The proceedings arose out of the collapse of a dam in Brazil which had released large quantities of toxic materials and contaminated water. There were over 200,000 claimants and the claims were made under Brazilian law. Other proceedings had been commenced in Brazil and a foundation had been established to provide compensation on a non-litigious basis. An application by the first defendant English company and the seventh defendant Australian company challenging the English court’s jurisdiction, and for the claims to be struck out or stayed, was listed to be heard in June 2020. Both sides had served expert reports with substantial exhibits. The defendants applied to extend time for service of their reply to the claimants’ evidence by five or six weeks because of the practical difficulties caused by the Covid-19 pandemic. If an extension was granted the hearing of the jurisdiction challenge would need to be vacated.
HELD: Approach to applications to adjourn hearings because of Covid-19 – The starting point was the overriding objective with the requirements that: cases were to be dealt with justly; in ways which were proportionate to the amounts involved, the importance of the case and the complexity of the issues; expeditiously and fairly. Regard was also to be had to PD 51 ZA para.4, which required the court to take into account the impact of the Covid-19 pandemic so far as compatible with the proper administration of justice. In the light of authorities since the start of the pandemic, the following principles governed whether a particular hearing should be adjourned if the case could not be heard face-to-face or whether instead there should be a remote hearing, National Bank of Kazakhstan v Bank of New York Mellon, Re Smith Technologies 26 March 2020 and One Blackfriars Ltd (In Liquidation), Re [2020] EWHC 845 (Ch) applied.
(i) Regard was to be had to the importance of the continued administration of justice. Justice delayed was justice denied even when the delay resulted from a response to the prevailing circumstances.
(ii) There was to be a recognition of the extent to which disputes could in fact be resolved fairly by way of remote hearings.
(iii) The courts had to be prepared to hold remote hearings in circumstances where it would have been inconceivable only weeks earlier.
(iv) There was to be rigorous examination of the possibility of a remote hearing, and of the ways in which such a hearing could be achieved consistent with justice, before the court should accept that a just determination could not be achieved in such a hearing.
(v) Whether there could be a fair resolution by way of a remote hearing would be case-specific. A multiplicity of factors would come into play and the issue of whether and to what extent live evidence and cross-examination would be necessary was likely to be important in many cases. There would be cases where the court could not be satisfied that a fair resolution could be achieved by way of a remote hearing.
(see paras 16-17, 24 of judgment).
Approach to applications for extensions of time because of Covid-19 –
(i) The objective if it was achievable was to keep to existing deadlines and where that was not realistically possible to permit the minimum extension of time which was realistically practicable. The prompt administration of justice and compliance with court orders remained of great importance even in circumstances of a pandemic.
(ii) The court could expect legal professionals to make appropriate use of modern technology.
(iii) The court could expect and require from lawyers a degree of readiness to put up with inconveniences; to use imaginative and innovative methods of working; and to acquire the new skills needed for the effective use of remote technology.
(iv) The approach required of lawyers could also be expected from professional expert witnesses. However, rather different considerations were likely to apply where the persons who would need to take particular measures were private individuals falling outside those categories.
(v) The court should be willing to accept less polished evidence and other material.
(vii) However, the court had to take account of the realities of the position and while requiring lawyers and other professionals to press forward care had to be taken to avoid requiring compliance with deadlines which were not achievable even with proper effort.
(viii) The court had to have regard to the consequences of the restrictions on movement and the steps by way of working from home which had been taken to address the pandemic.
(ix) Those factors were to be considered against the general position that an extension of time which required the loss of a trial date had much more significance and would be granted much less readily than an extension of time which did not have that effect.
(para.32).
Application to the facts – The defendants had shown that even when all proper allowance was made for the use of technology and extra efforts, the exercise of preparing the reply evidence would take significantly longer than was provided for in the timetable. Justice required that the defendants be given an extension of time of five to six weeks. The jurisdiction challenge hearing would be relisted for July 2020 (paras 42, 48).
Application granted Counsel: For the claimants: Nicholas Harrison, Jonathan McDonagh For the defendants: Charles Gibson QC, Nicholas Sloboda, Veena Srirangam
Solicitors: For the claimants: SPG Law For the defendants: Slaughter and May LTL 21/4/2020 : [2020] 4 WLUK 180 Official – 17 pages AC5011101
