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Journalists in family courts – what can they report and can you keep them out?

This is a post by Sarah Phillimore

I have written generally on the issue of media reporting from family cases and also of my growing disenchantment with the ability or even the will of many journalists to report fairly and accurately, even with the information right in front of them. I had always naively thought that journalists investigated what was actually happening and reported on that – but that naivety cannot survive the reality that too many now appear to approach the family justice system looking for facts to fit a pre-determined theory.

Andrew Norfolk’s ‘Muslim Foster Carer’ report was one of the more serious examples of journalistic failure in this regard, but there are sadly many others.

However, regardless of what opinion I hold of journalists, its clear that the issue of greater transparency in the family courts and what can be reported about what happens there, is not going away; and nor should it. It is right that we are able as a society to understand the mechanisms of such an important element of it. I agree that people and organisations that go unchallenged have serious potential to fall into some very bad habits indeed.

I do however remain uneasy that the present push to simply make more information available is not the way to go about it; not without some greater reassurance that those trusted with the information will use it to inform debate rather than stoke up the fires of their own particular prejudice. Because the huge problem with this is that they want to use actual, identifiable families and children as their kindling.

We have to be willing to weigh the rights of parents and children to keep their painful private histories private, as against the rights of journalists or bloggers to promote any particular campaign.

So I am going to look in particular at the procedural mechanics of how journalists or legal bloggers may be involved in family proceedings and what you should do if you object to them reporting on your case or even attending your case at all.

At the time of writing (March 30th 2020) the UK is in its second week of ‘lock down’ during the COVID 19 global pandemic so the situation is of course made even more complicated by the prospect of remote court hearings via telephone or video link. Hopefully this situation will resolve in time.

The right of journalists and bloggers to attend court – yes they can.

This is hopefully now NOT controversial. Journalists and legal bloggers have a right to come into a family court. Rule 27.11 of the Family Procedure Rules 2010 allows ‘accredited journalists’ – those holding a UK Press Card – to attend private family hearings. Since October 2018, this rule extends to cover ‘legal bloggers’.

FPR 27 refers to “duly accredited representatives of news gathering and reporting organisations” – I shall use the shorthand term ‘journalist’ throughout.

However, the right to attend hearings does not confer a right to report on proceedings or publish details of proceedings. There is a clear tension between the right of journalists to report about court hearings and the right of the parties – particularly children – to keep probably very sensitive and upsetting material out of the public domain.

See section 12(1) of the Administration of Justice Act 1960 and Children Act 1989, s 97(2). These Acts provide exceptions to the general principle in favour of open justice. The court may also relax or restrict reporting restrictions in appropriate cases using its inherent jurisdiction. These matters are all covered in more detail here.

The guidance of the President of the Family Division, issued on 3rd October 2019, sets out the relevant legal and procedural considerations for the court, where issues arise about extending or limited what can be reported in a family case. As a matter of substantive law, the court will have to carry out a ‘balancing exercise’, with an ‘intense focus’ on the likely competing rights before it. These will probably involve (but are not restricted to) consideration of ECHR Articles 6, 8 and 10 – the right to a fair trial, right to privacy and right to freedom of expression.

The President’s guidance refers to a useful summary of required balancing exercise as set out at paragraph 22 of Re J (A Child) [2013] EWHC 2694 (Fam).

The best interests of any child involved in the proceedings are not ‘paramount’ in this argument, but will be the court’s primary consideration.

If no agreement can be reached, the court should hear submissions and replies, and give a judgment on the application. This doesn’t have to be a ‘full’ judgment but it must contain enough information to allow the parties to understand how the Judge got to his or her conclusions. See Re W [2014] EWCA Civ 1303 at para [49].

I don’t want journalists to report about my hearing. What can I do?

There is a presumption that journalists may attend family court hearings but still clear and significant limitations on what they can report and what documents they can see.

The court has even wider powers – it can exclude journalists from all of part of any hearing entirely – see FPR r 27.11(3). At any stage of the proceedings the court can decide not to allow journalists or other reporters to attend a hearing or part of a hearing if the following test of necessity is met:

in the interests of any child concerned in, or connected with, the proceedings;
for the safety or protection of a party, a witness in the proceedings, or a person connected with such a party or witness; or
for the orderly conduct of the proceedings; or
justice will otherwise be impeded or prejudiced.

The court can make this decision on its own initiative or after representations by any party, witness, child’s guardian or the child, if of sufficient age and understanding.

What is key however, is that the court must give an opportunity to any member of the press who is present an opportunity to make representations.

So if the journalists have turned up at the hearing, it seems pretty straightforward. You can make your application then and there and everyone is present to hear what is said and respond to it.

However, more significant problems arise if you want to make an application before any hearing has taken place.

But what if I want to exclude journalists before the hearing starts?

Applying to exclude all and any representatives of media organisations is clearly a serious thing and you will need to make that people who want to object, have a proper opportunity to do so. We now need to examine the procedural issues, rather than those of of substantive law and proportionality.

You will need to think carefully about this. Attempting to exclude the press may in fact just alert journalists to your case who otherwise would not have known about it. But if you consider press interest is inevitable and would be harmful, you may need to make an application in advance of the hearing. The Practice Direction 12 I comments that journalists are used to weighing up information in a short period of time so there may be more leeway for less notice to be given – but unless its an emergency you will need to make your application in sufficient time before the hearing.

The President’s Guidance sets out a summary of what you need to do at para 6:

Guidance as to the procedure for applying for RRO’s [Reporting Restrictions Orders] in the Family Division founded upon ECHR Convention rights can be found within FPR 2010, PD 12I and a CAFCASS Practice Note: ‘Applications for Reporting Restrictions Orders’(as updated in 2015). The application must be made in the High Court and notice must be given to the press through the Press Association (‘PA’) Injunction Alert Service [Human Rights Act 1998, s 12(2)].

Section 12 of the HRA is important as it sets out that an injunction restricting the exercise of the right to freedom of expression must not be granted where the person against whom the application is made is neither present nor represented unless the Court is satisfied (a) that the applicant has taken all practical steps to notify the respondent or (b) that there are compelling reasons why the respondent should not be notified.

It is possibly to get an injunction ‘without notice’ but it is clear that the circumstances must be ‘exceptional’ when one is attempting to restrict an Article 10 right. For further discussion see Re X (A Child) (Residence and Contact) ([2009] EWHC 1728 (Fam)).

What is the Press Association Injunction Alert Service?

The Media Lawyer website explains

This service may be used to notify the subscribing media organisations of your intention to apply to the High Court for an injunction which will affect their rights under Article 10 by prohibiting or restricting reporting.

Nearly all the national media organisations have agreed to take part in the notification system.

The notification system

The purpose of the notification system is to provide a simple secure and verifiable method of sending national media organisations notice of proposed applications for injunctions, together with supporting documentation.

The notification system serves all the national media (newspapers and broadcasters) with the exception of the Financial Times and Sky News. If notice has to be served on these two companies it needs to be served on them directly. A list of those companies subscribing to this system and their contact details are at Media Organisations.

Nor does the CopyDirect service extend to local or regional media or magazines. The Practice Note (see below) states: If service of the application on any specific organisation or person not covered is required it should be effected directly. However this note does not expand on how such service is to be effective or what it means by ‘required’.

There is useful discussion from the then President of the Family Division in Re P (Enforced Caesarean: Reporting Restrictions) [2014] 2 FLR 410, FD, at [46]. This is also set out in the Practice Note below.

The President quote from a ‘most helpful note’ sent to his office by Mike Dodd in December 2013, the then legal editor of the Press Association.

“There is a page on the Injunctions Alerts Service website http://www.medialawyer.press.net/courtapplications/mediaorganisations.jsp – which lists the media organisations served, and the relevant telephone numbers, and which states at the top:’The notification system serves all the national media (newspapers and broadcasters) with the exception of the Financial Times and Sky News. If notice has to be served on these two companies it needs to be served on them directly.’
The service was also established on the basis that subscribing organisations would be taken to have been served with an application if notification was sent via the service. The system works as follows: Would-be applicants are supposed to call a number, given in the Practice Note, and speak to the Customer Services staff who deal with the service. They then send the documents, electronically (which is easier) or by fax, to the service. These documents are, if necessary, scanned to be put into electronic form, and are then distributed via e-mail alerts to the national media. Distribution is followed up by calls to each of the subscribing organisations to check that service has been received.

The service does NOT serve orders which have been obtained from the courts (despite the continuing efforts by some law firms to use it for this purpose).

The Media Lawyer site sets out the practical steps:

An applicant (or his solicitor) should telephone the Press Association’s CopyDirect service on a dedicated number – 0870 837 6429 – confirming that he wishes to apply for a reporting restriction order in the Family Division. The documentation identified in paragraph 3 of the Practice Note should then be faxed to 0870 830 6949 or emailed to the email address provided by CopyDirect when the applicant calls the service. Attachments to emails must be in Word format.
CopyDirect will, on receipt of the documentation send via either email or fax the documentation to the subscribing media organisations. CopyDirect will call the media organisations to ensure the material has been received.
CopyDirect will also confirm receipt to the applicant. CopyDirect will maintain records of notifications received and sent, including timings, for a period of three months. Copies can be made available to applicants, if required, for verification.

Operational Hours

Mon-Fri 8am-11pm
Saturday and Sunday 10am-11pm
Christmas Eve 8am-6pm
Christmas Day 9am-6pm
Boxing Day operating hours will be the same as the day on which it falls.
New Years Eve 8am-11pm
New Years Day operating hours will be the same as the day on which it falls.

There are no costs to applicants for this service.

Judges will expect applicants to have filled out the checklist for those applying for injunctions before they entertain an application. The Checklist PDF can be downloaded here

The Practice Direction 12I and Practice Note

The Media Lawyer site also provides a copy of the standard form of order to be adopted when a reporting restriction order is made in the Family Division. This is set out under ‘Further Reading’ below. It is also helpful to include an Explanatory Note . This sets out briefly what the case is about so allows journalists to make an informed decision about whether they want to object to your application or not.

The Practice Direction makes it clear such applications need to be made in the High Court. The other parties should get at least 14 days notice – Practice Direction 12C. The court may extend or shorten this time (see rule 4.1(3)(a)), using its general powers of case management. However, the case of AB in 2019, dealing with an application for reporting restrictions concerning an inquest into the death of a child, says only 3 days is required, relying on the CPR, rather than the FPR.

Methods of service are set out at Part 6 of the CPR – generally personal service, first class post or can be done electronically.

Application and evidence
The application may be a freestanding claim brought under the Part 8 procedure in the Civil Procedure Rules 1998 or it may be made within existing proceedings to which either the CPR or Family Proceedings Rules 2010 apply. I

It may be appropriate to seek a direction under CPR 39.2(4), that the identity of a party or witness should not be disclosed, and for documents to be drafted identifying individuals by initials.

The applicant should prepare

(a) the application/claim form

(b) a witness statement justifying the need for an order

(d) a draft order (see suggested form of this order below) and

(e) an explanatory note (an example of this can be found at the end of the suggested draft order below)

If you don’t have time to get the relevant documents together, the court will probably want you to provide a written statement as soon as you can. Unless the court orders something different, you should provide these documents on request to any person who is affected by the order. See W v H (Family Division: Without Notice Orders) [2001] 2 WLR 253; [2001] 2 FLR 927.

So how do I know who and how to serve?

The process seems relatively straightforward for those news organisations covered by Copy Direct. However, it does NOT cover the Financial Times, Sky News or ‘local or regional media or magazines’ OR legal bloggers.

There seems to be no guidance as to how a litigant in person is supposed to identify these entities and then go on to serve them. It surely cannot be proportionate to suggest that every single regional newspaper needs to be contacted to inform them that an application is going to be made to exclude them from a hearing about which they would almost certainly have had no interest in attending or reporting about.

The Practice Note isn’t much help, simply referring that service of ORDERS should be ‘effected in the usual way’ – the Media Lawyer website gives the addresses of the main news organisations on its site. However, with regard to applications to restrict attendance of journalists NOT subscribing to Copy Direct, it simply states

Appropriate local and regional newspapers and magazines should be served with application notices in the usual way

Again, it is not clear how one is supposed identify an ‘appropriate’ local/regional reporting outlet and how one is then supposed to go on to serve an entity one may not even be aware exists. Nor is it clear at all who or what now comprises ‘legal bloggers’ who may wish to be informed and how they may be contacted.

The LA in the AB case (above) served the media via Copy Direct and also the local papers in their area, which seems sensible – but the information they provided and a very sparse ‘explanatory note’ was criticised by the court.

The Media Lawyer website offers information at

www.willingspress.com

This is a subscriber website detailing comprehensive lists of UK and overseas titles (newspapers and magazines), their contact details and publishers – but at the time of writing, this link does not appear to work.

I can only hope that for litigants in person, so long as they comply with what is set out with regard to the Copy Direct notification service, and inform the Financial Times and Sky News separately, they cannot be criticised for any disproportionate breach of any journalist or legal bloggers Article 10 rights.

I will update this post if I get any better/further information.

The Big Question – does the new law on Domestic Abuse go far enough?

This is a post by Sarah Phillimore

“Thomas More: …And when the last law was down, and the Devil turned around on you–where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast–man’s laws, not God’s–and if you cut them down…d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.”
― Robert Bolt, A Man for All Seasons

On Sunday March 15th 2020 I was happy to accept an invitation to appear on the BBC’s ‘Big Questions’ programme to discuss the new Domestic Abuse Bill.

The other contributors were Michael Lewkowicz of Families need Fathers, Maria Cripps who runs a perpetrator programme in Brighton, Katy Bourne the Sussex Police and Crime Commissioner, Laura Richards founder of Paladin (the National Stalking Advocacy Service), Jo Gough the CEO of RISE UK and Luke Gittos of Spiked online.

I tried to set out my thoughts via Twitter on the train on the way down

On the train to Brighton ready for @bbcbigquestions "Does the new law on domestic abuse go far enough?"

Will be looking at this https://t.co/ConmvSdUMU
— Sarah Phillimore (@SVPhillimore) March 14, 2020

It was an interesting experience but the half an hour we got was no where near long enough to do more than lightly touch on some issues of considerable importance. However, I learned one thing above all which made a lot of things very clear to me for the first time – and that was the extent to which people either do not understand the distinction between the criminal justice system and the family justice system, or (perhaps more alarmingly) do not think it is important.

It was certainly naive of me not to have picked up on this before; as so many of us do I make the mistake of assuming that things which are clear and simple to me, are equally clear and simple to everyone else.

Much of the conversation was dominated by crimes; men who had committed them, how to identify them, how to ensure they did not get further access to their victims via any court system. With that, I entirely agree. Any person who has been convicted of a serious offence of violence against an intimate partner or child should have NO direct access to either without a very robust risk assessment and clear evidence of positive change. It is obviously wrong and harmful to allow such a person to directly cross examine their victim in any court setting. I am glad to see the Domestic Abuse Bill proposes to prohibit this but allow payment from court funds for an advocate to cross examine in those cases where the interests of justice demand it.

I do worry however how that will play out in practice and how long it will take to get the funds and find the advocate. My experiences in trying to find intermediaries do not fill me with optimism that this will be a quick or straightforward process. Nor am I aware from what pool of people these ‘cross examination advocates’ will be drawn nor any rate of pay. To cross examine effectively they will have to prepare thoroughly. Its not a matter of just turning up on the day and reading out a list of questions. Cross examination is a dynamic process where you must be ready to respond to answers you maybe did not expect.

However, this focus on criminal convictions and police intelligence, detracts from what I suspect are the majority of arguments in the civil family court about who spends time with children after a relationship breaks down. Typical of the cases in which I am instructed are a period of reasonably successful co-parenting after the separation, but then contact breaks down and allegations are made. Often each parent makes allegations against the other. Often neither parent has any kind of criminal record or concerns raised with any other agency.

During the debate the statistic that ‘only 1% of father’s are refused contact’ was raised. I don’t know where that comes from. Its not true, so far as I know. I can only assume that someone has bundled up direct AND indirect contact (which can be as little as two cards a year) and called it ‘contact’ – which of course is pretty dishonest. If anyone knows the source of this oft quote statistic, please do let me know. On my own cases I would say a lot more than 1% of fathers end up with no direct contact and no prospect of any direct contact either. And some of these fathers are identified by the court as ‘blameless’.

That this statistic has gained the traction it has – I hear it in many different places – underscores to me how the narrative of (female) ‘victim’ versus (male) ‘perpetrator’ is well established. This has the potential to do real and serious harm. It is fundamental to the rules of natural justice that people are able to challenge allegations made against them, if they do not accept them and if there is no evidence to support them such as a criminal conviction – which cannot be denied. An assumption at the outset that a women is a ‘victim’ has potential to cause great unfairness.

As I said in answer to a question by Nicky Campbell – the main problem with the civil family justice system is structural. What we need are quick and efficient fact finding hearings, judicial continuity and court buildings that can provide separate waiting rooms and other special measures such as screens and video links. What would be great also to have are safe, accessible contact centres so that when allegations are made against a parent, there is another route than simply stopping contact altogether while the court case winds its way though the system. I would like to see a strict time limit of 26 weeks as we have in public law cases and clear willingness to transfer the primary residence of children where possible, once it is clear that the primary carer does not accept a finding of fact and continues to obstruct contact.

.@SVPhillimore "The problem with the family justice system is structural. Thinking a shiny new law will solve the problem, will not solve it. We don't have enough judges or courtrooms, we need the system we've got to be funded." #bbtbq
— The Big Questions (@bbcbigquestions) March 15, 2020

It was sad but not surprising to see that I was instantly misquoted on social media, called ‘vile’ and a ‘disgrace’ for speaking nothing more than the obvious truth. If people genuinely think that pushing a false narrative and shouting down anyone who disagrees with them is a sensible long term strategy, I have some bad news for them. My only worry however is that these single issue campaigning groups appear to have captured a significant portion of the law and policy makers. And that IS a problem. Particularly when in their ranks are a number of women who have already been found by the family courts to have caused significant harm to the children in their care.

Hopefully we can keep talking and seeds can be planted. I have to continue to hope that we all want the same thing – for children to grow up healthy and happy with a relationship with both parents if that is safe for them. But nothing good ever came of denying the truth or bending the law to fit just one narrative. The problem with this debate was encapsulated by its title. Of course the law ‘doesn’t go far enough’. It cannot. Because what many campaigners seem to want is something that goes entirely beyond the law – a system whereby allegations (made by women) are simply believed without challenge. And that cannot be right. And I will continue to speak up against it.

Westminster Legal Policy Forum keynote seminar: Next steps for family law in England and Wales

Next steps for family law in England and Wales – reforming care proceedings, protecting vulnerable users and modernising court procedures

Sarah Phillimore, Barrister, St John’s Chambers
Published on 26th February 2020

11.25 – 12.05 Reforming care proceedings in England and Wales – Special Guardianship Orders, improving standards nationwide and innovative approaches to care

I was very pleased to be asked to speak today, but rather less happy about what I was going to use my five minutes to say. There is clearly information and concern enough about the current operation of the child protection system to fill five days.

So I thought it probably most helpful to set out my general concerns. Because, while all of these articulated identified issues and concerns are important, my worry is that without clarity regarding the underlying narrative of what drives state intervention with families, then much time and energy may be expended on reforms and alternations which do not have the intended consequences.

I will first explain my background and what I say gives me authority to comment in the way I do. I began to specialise in care proceedings around 1999. From 2011, I became increasingly concerned about the poor quality of public debate around these issues; sadly some of it generated by serving members of Parliament. This reached an apex for me in late 2013 with the case of the Italian national Alessandra Pacchieri who was subject to a ‘forced Caesarean’ after suffering a mental health breakdown on a visit to the UK – her child was later adopted. This generated a great deal of media commentary, some more accurate and responsible than others. However, it was clear that the ‘system’ did not cover itself in glory in the handling of this case and the visceral and terrified reactions of a fairly large sector of the public could not simply be ignored.

That prompted me to take more direct action; I set up my website Child Protection Resource Online and I organised over the years 3 multi disciplinary conferences where the aim was to bring together parents and professionals to discuss how the system was – or wasn’t – working.

Therefore for the past six years I have actively attempted to engage in dialogue with a great deal of people who have very varying perspectives on what the child protection system is FOR.

And the key difficulty appears to have emerged, in my view, that we have competing narratives that exist in tension with one another. I will deal with this fairly crudely given time constraints

The first narrative – and this is the one supported by successive governments – is that children are to be ‘rescued’ from neglectful homes, and placed for adoption in ‘warm loving homes’ with parents who will advocate for their children and support them, requiring less state intervention.

The other is that England and Wales are clearly outliers when compared to all other European countries in our willingness to make orders that permanently sever a child’s connection to his birth family. And that insufficient respect – or none at all – is paid to the rights of parents to be supported to care for their children. I see this particularly in cases involving parents with learning disabilities who, unless they have the benefit of supportive families are often simply unable to care for their children.

The narrative you embrace clearly has consequences for the direction of travel of care proceedings.

The example of Special Guardianship Orders is helpful and illustrative. The 26 week timetable together with various judicial warnings about the seriousness of a placement order has, without doubt, lead to SGOs being made on the basis of hope and crossed fingers. It is my view that a Supervision Order should never be attached to a SGO – this is supposed to be an order of permanence where the holder has ‘super PR’. It is simply illogical to suggest that it must be accompanied by a SO ‘to keep an eye on things’. If a SO is required, it suggests to me that the SGO should not be made.

This is in my view a direct consequence of the competing narratives. If we are fully committed to the ‘rescue narrative’ than frankly 26 weeks is far too long for most care proceedings, and as was envisaged by the original framers of the Children Act ,care proceedings could sensibly conclude in a matter of weeks. If however we espouse the need to provide families with more intervention and support then 26 weeks is no where near long enough.

How do we resolve this tension? I do not know. And happily I am not tasked with the very weighty responsibilities that fall upon law and policy makers in this room. But we will certainly not resolve anything if we can’t acknowledge it.

I would like to see greater awareness and discussion of what could be put in place to make care proceedings fairer, more accessible and less brutal for parents. Only this week I was pleased to read about the new assessment centre at Trevi House in Plymouth – if you don’t know about the work of Trevi House then I suggest you find out more. On Tuesday I attended a conference in Birmingham which discussed the success of parent advocacy programmes in the United States and what work was beginning to be done here with regard to use of such programmes and greater involvement of families by way of Family Group Conferences.

So I hope this provides some food for thought and a possible basis for further discussions.

Lived experience is great. But law and policy have to be based on facts. I hope I am wrong about my criticisms of the Family Justice ‘three’ month review and the way in which it has gone about gathering ‘evidence’.

Time, as ever, will tell.

Sarah Phillimore
26th February 2020

The Crown Prosecution Service in the Classroom

This is a post by Sarah Phillimore

On Friday January 24th 2020 I was alerted to the recently launched ‘Commentary on the LGBT Bullying and Hate Crime Schools Project Classroom activities and guidance for teachers’ [EDIT this guidance is no longer available at this link. It was removed from circulation and withdrawn after the CPS received a letter before action threatening judicial review]

This is for key stages 3 and 4 – i.e. children aged 11-16.

The CPS initially said this pack could ONLY be seen by teachers.

I found that extremely alarming. I have a child of my own in the school system so my alarm extends far beyond my professional criticism of guidance that is in places muddled or plain wrong.

I set out at the end of this post my detailed comments on the text in the pack. I could not access the videos or PowerPoints and did not seek them out as the CPS were apparently saying this was the reason the pack may not be shared with parents, because it involves ‘sensitive’ case studies of – I assume – ‘real life’ children.

I will put aside for now the wisdom of attempting confidentiality around such private data in a pack that is presumably sent to every secondary school in the country. This is the least of my worries right now.

I emailed the CPS to ask them if I may publish the guidance and my commentary. They emailed me on January 27th to ask if they could see my commentary. I emailed it the same morning. EDIT They then replied on the 29th with a link to the text of the guidance which was now public. But not the videos or powerpoints. I don’t flatter myself that my decision to blog or not to blog made any difference to their decision – but I suspect the telephone calls from numerous journalists made them realise they could not continue to keep the text hidden from parents.

If they had not done this, I would have published the guidance in any event. It is a matter of public interest. I have not shared the videos or PowerPoints and therefore I hope that risk to vulnerable children is reduced. But putting vulnerable children in official school guidance and using that as a reason to keep parents from seeing it, would be a bizarre and unacceptable state of affairs and I very much hope that is not what has happened here.

Perhaps the CPS would like to explain what prompted their change of heart.

TL:DR Summary of concerns

As the table below indicates, I am very concerned about this guidance. But if I was asked to pick my Top Three, they would be these.

At page 25 there is an alarming list of behaviour, some of which is trivial or undefined which is offered as examples of ‘hate’ – this is particularly concerning as the Guidance repeats throughout that there is no statutory definition of homophobia or transphobia, and a ‘hate’ crime or incident relies entirely on the subjective perception of the alleged victim or bystander. This list includes ‘ostracising from a friendship group’ and separately (and undefined) ‘rejection’.
At page 33 there is an apparent attempt to create a ‘hierarchy of rights’ and to place LGBT+ at the top. This would seem to be unlawful as it discriminates against other characteristics protected by the Equality Act, such as race and disability. Surely schools should be developing robust policies against bullying which apply to all children, not attempting to set up one minority group as more deserving of protection.
I note that section 4 has as ‘activity 1’ ‘identifying potential criminal charges’. I am troubled by the implications of this, in the context of guidance that purports to help teachers and students ‘identify and report’ hate crime. Nor am I clear what a teacher is supposed to do if they or a student identify another classmate as having displayed ‘hateful’ behaviour. Where will it be recorded and to whom will it be disclosed?

Given that the guidance is very clear about how seriously such hate crimes and incidents should be taken, I am worried that a clear incentive is being set up here to encourage students to report one another’s behaviour or for a teacher to feel under pressure to refer it on to the police.

It is giving a very clear message to girls that anyone can be any ‘gender’ they like (including ‘pan’ ‘omni’ and ‘a’ sexual, none of which are defined anywhere in the guidance) and that it is ‘hate’ to object to anyone in your space, or to ‘reject’ them – again undefined but clearly means something other than social ostracism as that is given its own separate mention. So what DOES ‘rejection’ mean in this context? It has to mean sexual rejection. There is no other way children can ‘reject’ each other. They aren’t offering employment prospects.

I am therefore very troubled that this guidance was initially being kept from parents in its entirety – although they may now, after media pressure, see the text of it.

As is sadly common with all documents I have read which purport to promote the rights of the ‘trans child’, I can see no acknowledgment of or discussion about parental responsibility or Gillick competence in this guidance. As it is aimed at 11 year olds I consider that is a potentially serious omission.

I hope that a legal challenge will be made to this guidance. The influence of Stonewall etc is clear to see.

The time to speak up is now.

I will leave you with this quote from mumsnet user michelleoftheresistance

It’s already known the massive comorbidities going on with children presenting with gender identity issues, pretty much the same comorbidities coming up over and over again for other vulnerable kids. Treating one group as more privileged and better served than others is going to create resentment, particularly at a time when mental health care and SEND provision is dire and many families are angry and struggling. It will do nothing to meet the Code of Practice or Equality Act’s requirement to promote good relationships between groups: this will actively damage it. It does nothing to address the root problems underlying why children are becoming confused and distressed about their identities and bodies. It’s also inevitably going to incentivise transitioning. And that’s on top of the always there, bald insensitivity and rejection of female kids with history of abuse and sexual trauma, female kids whose religions don’t allow for going along with personal choice of sex over reality, female kids whose disabilities won’t bend in that direction, etc etc.

Detailed comments on the CPS pack

My commentary is in italics

HOW TO USE THIS PACK
How to use this pack – it is directed at ‘gay bisexual transgender and questioning people’ BUT NOTE at page 16 it includes ‘asexual’ ‘pansexual’ and ‘omnisexual’ people but gives no definition, then says definition of terms may change in any event. What is meant by ‘questioning’ people? How are they identified or defined?

The Glossary of Terms says (p19) ‘the process of exploring your own sexual orientation and/or gender identity’.
How is this different from ‘being a teenager’?

P7 Section 4 deals with identifying criminal charges ‘these are optional and additional. Teachers can use as many or as few of them as they wish… However we strongly recommend teachers consider them as they will deepen the students’ understanding of impact of anti LGBT behaviours…’ Unhelpful phrasing. So if this section is ‘optional’ all others are compulsory?
Clear indication given that teachers are to devote time to this
WHO is identifying criminal charges and why is this the job of a teacher?

P8 Before using this pack teachers are advised to ‘inform themselves’ by visiting a number of websites. Including Gendered intelligence and Stonewall. Clear evidence of bias in linked materials. Stonewall and Gendered Intelligence are well known for promoting narrative that questioning GI is ‘transphobia’. Other sites – Proud Trust and Schools Out I had not known about, but brief glance at their websites indicate they are in the Stonewall mould.
Why no reference to Transgender Trend or Safe Schools Alliance?

P9 ‘LGBT issues are best addressed in a school environment which explicitly supports and includes students’ What does this mean? Is asking questions about biology/GI to be seen as not supportive or inclusive and therefore frowned upon?

P9 All staff need to know how to challenge students demonstrating hostility to LGBT people What is the definition of hostility?

P9 Teachers must be especially mindful of the fact that some students in their groups will be LGBT and must be protected whether they are out or not Protected from what? Questions? Challenge?

P9 Make sure the students understand that anti LGBT behaviour is not caused by LGBT people; it is caused by people with homophobic attitudes. Trans people are not necessarily homosexual. Transgender is NOT a sexual orientation. This is setting up potentially corrosive expectations – that anyone who asserts anti LGBT bullying will be telling the truth and therefore presumably no investigation of their allegations will be required.

P9 Teachers should bear in mind that the most important thing is for students to discuss, think about and understand the issues This is not an appropriate exhortation when there is little clarity about what constitutes appropriate questioning and what will be seen as homophobia or transphobia. What ARE students allowed to discuss?

P10 STARTING TO USE THIS PACK
When an act is classed as a hate crime, the courts can impose a tougher sentence on the offender under the Criminal Justice Act 2003 It is odd for this sentence to immediately follow the exhortation that it is discussion that is important.

P10 What does the CPS mean by hate crime?
ANY criminal offence which is perceived by the victim or any other person to be motivated by hostility or prejudice based on race, sexual orientation, disability, or person being transgender Exactly the problems identified in the Fair Cop JR – Subjective definition of crime – Protected strands do NOT mirror the protected characteristics of the Equality Act – Being transgender in any event is NOT a protected characteristic. The actual protected characteristic is gender re-assignment “the process of transitioning from one gender to another.”

P10 What does the police mean by LGBT hate incidents? There is no statutory definition of a homophobic or transphobic incident Again – definition of ‘crime’ or ‘hate incident’ entirely subjective. Teacher has no objective standard by which to judge the behaviour of students.

P14 The CPS and the role of the police
P14 ‘It is more likely that prosecution is required if the offence was motivated by any form of prejudice against.. race, gender, disability age, religion, sexual orientation or gender identity’ Again, does not reflect the protected characteristics of the Equality Act. Why not?
Again, ‘gender identity’ is NOT in any event a protected characteristic.

[EDIT May 19 2022 I have revisited this blog post in light of the Tribunal hearing today, dealing with an appeal against the CPS refusal to disclose details of its discussions with Stonewall and other groups. I am now not sure what point I was making here; hate crimes deal with ‘monitored strands’ NOT protected characteristics and ‘transgender identity’ is a monitored strand. This confusion between ‘monitored strands’ and ‘protected characteristics’ is I am sure responsible for a lot of confusion about these issues]

P16 AIMS AND OBJECTIVES
What do we mean by LGBT+? … represents other sexual identities including pansexual, asexual and omnisexual and questioning people exploring their sexuality. Where will we find the definition of these terms?
Is there a universally accepted definition?
I note the Glossary at p19 does NOT contain a definition of ‘asexual’ ‘omnisexual’ or ‘pansexual’

Pg 19 defines ‘intersex’ as ‘When a group of conditions cause people to be born in between male and female. Sometimes this does not show up at birth.’ This is an inaccurate and offensive attempt to define disorders of sexual development.
P19 ‘transition’ is defined as ‘a process through which some transpeople begin to live as the gender with which they identify, rather than the one assigned at birth’. ‘Gender’ plays no part in the birthing process. ‘Sex’ is observed and recorded at birth unless a baby is one of the tiny percentage who have ambiguous external genitalia, due to a DSD.
P19 Transphobia is defined as ‘discrimination against and/or dislike of trans people’ This is NOT the definition of a ‘phobia’. The NHS defines a phobia as “an overwhelming and debilitating fear of an object, place, situation, feeling or animal”
Again – WHAT constitutes discrimination or dislike? Any questioning of the assertion that a transwoman is a woman for e.g? Any reference to humans as sexually dimorphic species?
How can a mere ‘dislike’ of any person’s characteristics, possibly constitute a ‘phobia’ And absent any accompanying discrimination, can it become a hate crime or hate incident?

P20 ‘This glossary is not a definitive list and it is important to remember that people should be referred to in the way that they wish to be referred to. It is also important to note that definitions can vary and can change over time’. In the context of guidance offered under the mantle of identifying hate crimes, this simply isn’t good enough. How will the teacher know the definitions have changed? Who changes them? How is knowledge of this change disseminated?

P 21 SECTION ONE Activities and worksheets
P23 Everyone has a sexual orientation … it is the part of a person’s identity that describes who people experience attraction to, commonly based on gender… gender identity is a person’s sense of themselves as being a boy/man woman/girl both or neither. Gender identity is not necessary dictated by a person’s physiology. This is nonsense. Sexual orientation is a monitored strand. It means sexual attraction to the same sex. This definition effectively erases lesbians by saying that a male bodied person can identify as a woman even if retaining penis and testicles.
If a teenage lesbian then objects to a sexual encounter with a male bodied person – is that sufficient ‘dislike’ or ‘discrimination’ to warrant a referral to the police?

P24 Students should be told that the behaviour in school is dealt with through education, the school disciplinary procedures etc.. it would be rare for incidents to be reported as crimes. Explain then the circumstances in which an incident WOULD be reported as a crime.

P25 Categories of hate crime or hate incidents As a general point, some of the examples given are filmsy and particularly dangerous when coupled with the existence or not of ‘hate’ being determined by the alleged victim or bystander.
‘ridiculing and stereotyping comments’ Unclear what this means.
Ostracising and excluding from friendship groups So it is enough that the ‘victim’ or any bystander simply perceives this ostracism as being by virtue of being trans
How can schools sensibly police friendship groups?
Rejecting someone or not wanting to work with them because of their sexual orientation, trans identity or perceived trans identity So a lesbian teenager is compelled not to ‘reject’ another student who alleges they are a transwoman?
What IS included in this word ‘rejecting’?
Showing or distributing anti LGBT+ leaflets comics or other propaganda’ Define propaganda! On this definition the recent episode of South Park would constitute ‘hate’
Wearing Anti LGBT+ Symbols – for eg badges or Tshirts What will count as ‘anti’? The LGB Alliance? Fair Cop?

P33 LGBT Bullying ‘worse’ than all other forms of bullying I think this is the core of my concern with this document. Primacy is being given to LGBT rights on a false basis. For example claims this bullying is ‘different’ because people get killed. Well, so do disabled children! So do black children! This is a very concerning document. It is unlawful to give primacy to right group over another. That in itself risks discrimation.

The person being bullied or attacked because of their sexual orientation will be afraid that other members of their community might also be attacked and are at risk WHAT IS THIS DRIVEL
Most of the ‘examples; here apply equally to race hate.

P36 It is never appropriate to ask a gay person to use separate changing facilities Really? So where does the gay transwoman go, if in reality she is visibly male bodied with penis and testicles and makes girls uncomfortable when sharing a space? Presumably if any girl objects she is guilty of ‘hate’.
P67 Tell the students that no one should put up with bullying, whether its happening to them or they are drawn into a situation where it is happening to someone else. So provide an impetus to escalate any complaint?

P90 We will not tolerate bullying or harassment and if we see it we will report it and see that it is dealt with. Sinister in context. Report to who?

P101 SECTION FOUR IDENTIFYING POTENTIAL CRIMINAL ACTIVITIES
Inside and outside school – on the bus So children are to be on the look out for crimes even beyond the school.
P104 In the final class they can discuss the possible charges they have identified and what the potential consequences would be Sinister in context
Tell the students that guidance from the EHRC generally encourages organisations and service providers to be trans inclusive. This means treating trans people according to their gender identity and only excluding trans people from facilties in exceptional circumstances where this can be justified. Unhelpful and confusing fudge of existing law.
Worksheets to ‘train’ children as investigating offices and to decide what charges to bring Dear Lord.

Further commentary on the videos by a colleague at Fair Cop

SP : I have not seen the videos, but from these comments I am concerned. The use of language such as ‘henchperson’ seems utterly bizarre and deliberately pejorative.

Videos: FEAR acronym – False Evidence Appearing Real – does not distinguish between justifiable fear and baseless prejudice. Conflating the two, and reducing fear to the category of baseless prejudice .is gaslighting girls into accepting boys into their toilets and other single-sex facilities.
Definitions of homophobia, transphobia, etc. Interesting to note that the definition of homophobia does not extend to those perceived to be gay, but the definition of transphobia does extend to those perceived to be trans.
The definition of hate crime/incident: this includes not merely acts that are objectively negative (where it is perceived that the perpetrator is motivated by hate), but also omitting to do something (where it is perceived that the perpetrator is motivated by hate). This omission does not need to be something that an individual reasonably and legitimately expects, or that the law demands is provided (e.g toilets). The omission could also be something that the LGBT+ person simply desires (e.g. the girls toilets, or admission to a particular girls friendship group). The only necessary factor is that it must be perceived by someone that the decision has been motivated by hate.
Video: Transition.
The questions in and of themselves are actually quite valid. Here we see the attitude of the girls (which is aggressive) conflated with the content (which includes that which is reasonable) with the result that the content is also positioned as unacceptable and a hate incident.
Video: Toilets.
The girls merely correctly identified him as a male.
Discussion of, much less asserting of, sex-based rights under the EA becomes impossible and falls into the category of hate bullying/hate incident/hate crime. This is because any discussion of these rights, that permit the exclusion of trans individuals where it is a proportionate means to a legitimate end, must make reference to people’s biological sex whatever their felt gender identity may be. Thus it involves misgendering, upsetting people, being seen as offensive and may out people as trans against their wishes. It simply cannot be the case that discussion of existing rights enshrined in law, and the protection and needs of the members of a protected category become hate incidents or hate crime and liable to criminal prosecution.
Where are the other 2 in the series of 3 resource packs developed to increase awareness of identity-based bullying and hate crime? Are these similarly forbidden to parents? (This is different from edition 1 of this document).
The definition of transgender on page 19 means that a male who has neither socially nor medically transitions should still be fully accepted as a girl purely based on his say so.
Use of the term ‘henchperson’ is extremely sinister. This entire document is designed to install fear and to train children to police each other’s behaviour, friendship groups, speech etc.

Who Cares? An interactive play by What Next Theatre Group

https://twitter.com/SVPhillimore/status/1202358430704578561?s=20

On December 4th I travelled to see the production of the ‘What Next Theatre Group’ who describe themselves as ‘a new and exciting company working with Gloucestershire County Council and the Nelson Trust to present a new play in three scenes called ‘Who Cares?’ The play deals with the difficult issues surrounding adoption and the real consequences for the family and professionals involved’.

it was clear that the intent went beyond the mere presentation of a piece of theatre – after the play the actors and real life professionals gathered on stage to take questions from the audience – the actors remaining in character.

As the Theatre Group says:

We think that there is a rapidly increasing interest in the work of the family court and in the social issues with which it deals. We want to work together to show what may be done to help people through the most difficult ties of their lives – times when they experience extreme loss and degradation. We hope that by combining legal knowledge, theatre experience and the important work of the Nelson Trust, we can help the audience to consider new ideas and practice changes and understand some of the social issues that arise in this difficult area

So what follows are my impressions about how this enterprise met its stated goals.

It was certainly a bold idea. I do not wish to criticise its staging as that would clearly be unfair – this is a group which was set up about 8 weeks ago and presenting its work in a brightly lit lecture theatre with a very difficult and small stage on which to work. I would like to see it performed in a more sympathetic environment – the actors alone cannot do all the work of enabling us to suspend disbelief and even a punchy script and talented performers will struggle against these surroundings.

I am also entirely unclear what the random ‘trans’ character Ella/Ed bought to the narrative, other than to enable some members of the audience to signal their deep understanding around issues of inclusivity and identity by putting questions to Ed about how his (fictitious) family coped with his search to know who he was.

One of the most powerful strands of the script was the fact that the mother was herself adopted at the age of four, and how her adoptive parents had struggled with apparently little support with her behaviour as she grew. This is worthy of more exploration.

I also felt that the way in which the scenes were ordered detracted from rather than powered up the narrative – the court scene came second, after a very powerful opening in the hospital where the social worker was assaulted by an angry and terrified young mother, facing the removal of her second child.

I would have liked to have seen the court judgment as the final scene – it was well done, and an uncomfortable experience to be forced as a member of an audience to consider how the legal language and dry rejection of the birth family as ‘suitable’ to care for a child, must feel to those who have to sit and listen and struggle to understand.

I suspect that a more accommodating stage would have allowed for the court scene to have more power, regardless of where in the time line it came.

However, I can see that the drive of the production was to explore how after these proceedings the mother was simply left behind – the circus packed up and moved on, her only option to find temporary hostel accommodation once her mother and baby foster placement came to and end. The court is not the ‘end’ for parents.

‘Show not tell’

Leaving the limitations of staging aside, how did this production succeed on its aim to ‘show, not tell’ and to educate people about the work of the family justice system?

Without interviewing the entire audience its hard to say for sure. But I think I picked up enough information to reach some tentative conclusions. I was able to interview two of the audience who had no choice but to answer my questions as I was driving them home. This was interesting. One was a teenager who claimed to have only come because I bribed her with steak. However, she was able to provide an animated response and the evening had clearly piqued her interest. She found that language used by the mother challenging – she appreciated that this was no doubt realistic but it put up a barrier for her being able to feel compassion and sympathy.

The other was a newly qualified social worker who was very enthusiastic and said it had been a ‘great learning experience’ for her. She felt frustrated that she hadn’t been able to ask questions of the cast and wanted to know much more about why the baby’s grandparents could not have cared for him and what underpinned the social worker’s relationship with the mother in the first scene.

She asked – and I thought this very interesting – why no one had commented on the fact that the social worker was physically assaulted in the very first scene. Why this is something that is just seen as ‘what happens’ to social workers,

During the question and answer session with audience and cast, I was struck by how many in the audience appeared to be social workers, given the laughter or angry murmuring that followed some comments. One of the biggest laughs followed a question to the social worker about why she wanted to do the job. When asked how she coped she replied ‘I have supervision’ which bought another cynical chuckle from many.

The assertions of the Nelson Trust that social workers were ignorant about ‘trans’ and addiction issues caused a definite ripple and some passionate responses that it was simply wrong to expect social workers to know everything about everything – they work in multi agency teams and part of their job is knowing when they DON’T know and where to send people to for help.

So I asked if the audience would give me a show of hands as to how many were social workers. It was about half the 150 strong audience.

And that is interesting. Because its part of why I am concerned that these efforts to help people understand will not bear the fruit that is hoped. Its part of the reason that I abandoned active campaigning earlier this year – as I was so depressed by the refusal of many to challenge their own narratives, how they used every attempt to widen conversations as simply support for that narrative, rather than a challenge to it that ought to be accepted.

HHJ Wildblood was asked by the audience why he had become involved. His answers were interesting – I paraphrase here:

People don’t see how the family court works, just don’t understand the system, so I put this on stage … feel don’t think, make up your own minds…really wanted to make the point for after care, parents matter too. The main work must surely be done before court.
The whole purpose of our lives in one word – compassion. There is no ‘them’ there is only ‘us’ – want to try and send out that message.

It is powerful to hear these words spoken by a serving and senior member of the judiciary. I do not disagree at all with his distillation of the central message into one word – compassion.

But what the audience reaction showed to me is that efforts to make people ‘feel’ rather than ‘think’ may do nothing else but cement their already strong ‘feelings’ about why the system doesn’t work or who is to blame. It was clear where the Nelson Trust thought the blame should lie – parents aren’t given ‘enough time’ to make changes. In one uncomfortable exchange with the birth mother the social workers were referred to as ‘fuckers’ – this made the newly qualified social worker very uneasy, coupled with the complete lack of reaction from anyone to the fact that the social worker faced a physical attack on meeting the mother.

Nor do I think the ‘enough time’ argument has any weight. When I started out, 20 years ago, care proceedings routinely took one or even two years to drag to conclusion. This helped no one, least of all the child. ‘Time’ alone cannot turn around a person’s life. ‘Time’ plus ‘effective intervention’ may well do so. But this we do not have, for a variety of reasons – none of which say anything good about us as a species.

The reasons the system is failing are many. But as a species we cling to simple narratives to try and make sense of chaos and pain. It was clear that some in the audience (and cast!) clung to that narrative that its the ‘fault’ of the social workers – their arrogant language that they made the ‘decisions’ rather than recommendations to the court. And social workers don’t help themselves by this constant refrain that ‘we are child focused’. A child doesn’t exist in isolation from his family. A system that leaves the parents behind is cruel and ineffective. As the parents go on having children.

But. As the real life Team Manager said ‘We have to make the decisions that no one else wants to make’.

I think there is a real risk that social workers are being blamed for each and every social ill that has led us here. The saddest comment of all, for me, was to here the Team Manager talk about the difficulties of working with people from other agencies – the lack of time, the lack of trust.

And this chimes with my fundamental concern. Most people, most of the time appear to be on broadcast mode only. To open up space in their heads for real thought, to challenge their dearly held narratives is hard. Not many people seem able or willing to do it. I hope that events such as these do push at the door for some. Without a willingness from all concerned to be honest about what is happening, the situation can only get worse. But already it is quite beyond the efforts of any one group to change.

However, whatever my fears and cynicism – which certainly I also have to be open to challenge – at least 150 people traveled on a cold winters evening to participate with enthusiasm in a pretty unique piece of theatre. It is no small thing that a serving member of the judiciary has taken this step and is trying to do something to make us remember – there is no ‘them’. There is only ‘us’.

When is it permissible NOT to tell parents that their child is involved in court proceedings?

This is a post by Sarah Phillimore

I was recently asked to write a summary of a case called LA v XYZ (Restriction on Father’s Role in Proceedings) [2019] EWHC 2166 (Fam) (18 February 2019). I thought this was a useful case to discuss the legal framework about how you can stop a parent being involved in care proceedings.

This issue was subject to wide public discussion in November 2018 when Sammy Woodhouse asserted that her child’s father (in prison at the time of the application by the local authority for a care order) had been ‘offered contact’ with their son in care proceedings. A number of politicians took this up and there was manufactured outrage about this so called ‘rapist’s charter.’ The reality – as ever – was more complicated than that. The child’s father retains a right to know about care proceedings unless application is made to the court to expressly disallow this.

I think this is a useful illustration of why its so difficult to present issues around the family courts in a way that reflects reality. Deciding whether or not to allow adults to continue to have a role in a child’s life requires careful analysis about competing ECHR rights. There is no ‘rapists charter’, there is no demand that violent men have contact at ‘any price’ – but you would not know this from the various ‘campaigns’ now on going which seek to change a law that doesn’t actually exist.

So how is it that we can’t just ignore the existence of fathers who are violent or abusive? And if we do want to restrict their access or remove them entirely from care cases, what are the requirements we have to fulfil to make this lawful?

Restricting parent’s access/participation in proceedings

The case of LA v XYZ (Restriction on Father’s Role in Proceedings) [2019] EWHC 2166 (Fam) (18 February 2019). case involved the child Z, who was in the home when her mother was murdered by her father. He was convicted and sentenced to life imprisonment, to serve a minimum term of 22 years.

The Local Authority applied for a care order and did not want the father to be a party to those proceedings. The LA didn’t want the father to have any contact with Z and made an application under section 34(4) of the Children Act 1989 to stop this.

Finally, the LA asked to be released from its statutory duty under section 22 CA 1989 to consult the father about or give him notice of any future decisions relating to Z. This would mean the court needed to use its ‘inherent jurisdiction’.

The Guardian supported the LA position and reported that Z had said she wanted no further indirect or direct contact with her father and did not want him to know anything about her.

The father argued that he did not wish to cause harm to Z, but simply wanted to participate in proceedings. He could not interfere in his daughter’s life as he did not know where and with whom she now lived. He would accept continued redaction of documents to maintain that position.

The court decided to grant the LA’s applications. It is clear that such orders are ‘exceptional’ but in this case were necessary; having conducted an analysis of the various considerations the court was clear that Y’s continued involvement in these proceedings was ‘deeply harmful to Z.’

It is important to consider such issues as early as possible. If such an exceptional application is made, it should set out the terms of order sought and evidence must then be provided to set out the evidential foundation for why such an order is necessary.

It is expected that such cases will be allocated to a judge of circuit judge or High Court level – not allocated to a judge of district judge level unless specifically released by the Designated Family Judge or nominated deputy.

Application to prevent a parent even knowing about care proceedings

Part 12 Family Procedure Rules [FPR] 2010 sets out who should be an automatic party to proceedings and who should be given notice of any application.

A father with parental responsibility is an automatic respondent to care proceedings while Practice Direction 12A sets out that the LA should inform fathers who do not have parental responsibility about the application for a care order.

If a father does not have parental responsibility, the application is made under r.12.3(3)(a) FPR 2010, which provides that the court ‘may at any time direct that any person or body be made a party to proceedings.’

See S (a Child) [2023] which sets out the guiding principles in such cases.

If someone is a party to proceedings, they should get copies of all the paperwork and be invited to attend court hearings.

It’s clear that the circumstances have to be ‘exceptional’ to justify not telling a father about the proceedings at all – see further, Re AB (Care Proceedings: Service on Husband Ignorant of Child’s existence) [2003] EWCA Civ 1842. Exclusion of a parent could only be exercised in “highly exceptional circumstances” and M v F [2011] EWCA Civ 273 – “A very high degree of exceptionality is required.”

In A Local Authority v B (Dispensing with Service) [2020] EWHC 2741 (Fam), a 17 year old child did not want his father involved in the proceedings as this would cause serious mental distress to the child. The court held that under FPR 2010 rule 6.36 the court has power to dispense with service on a parent of proceedings for an order under the inherent jurisdiction notwithstanding the requirement for service in rule 12.8(1). The court set out the following principles to apply when considering whether or not to serve a parent with notice of proceedings

i) The starting point is that a father should be able to participate (in a wide sense) in proceedings concerning his child. The court should start with full participation then consider partial participation and then, only as a device of last resort, the father’s exclusion from the proceedings.

ii) The court’s task is to identify the nature and extent of the harm in contemplation. The court should be rigorous in its examination of the risk and gravity of the feared harm.

iii) There is no requirement that a significant physical risk be demonstrated. Harm and risk comes in many guises.

iv) When evaluating the risk of future harm, there is no minimum requirement. The court must be alert both to the risk and to the magnitude of the consequences should the risk eventuate, and must also consider whether and to what extent that risk can be managed by the court’s control of its own processes. The greater the harm the smaller need be the risk.

v) The court is not determining a question with respect to the upbringing of the child so the welfare of the child, whilst an important consideration, is not paramount.

vi) Authorities in the Strasbourg jurisprudence put a high bar on excluding a parent with parental responsibility. In this context, where a parent has parental responsibility or a right to respect for family life under Art 8, a high degree of exceptionality must be demonstrated by strong countervailing factors to justify their exclusion from participation in the proceedings.

vii) It must be remembered that exceptionality is not, in itself, a test or a short cut and a fair balance must be struck between the factors that are present in the individual case.

See further the discussion in CD (Notice of care proceedings to father without parental responsibility) [2017] EWFC 34

Stopping a party getting access to certain papers

The court has case management powers under rule 4.1 and 12.2 FPR 2010 to restrict a party’s access to material filed within proceedings. But this is an ‘exceptional’ course of action.

As the former President of the Family Division Sir James Munby commented in Re B (Disclosure to Other Parties) [2001] 2 FLR 1017. such cases will remain very much the exception and not the rule. It remains the fact that all such cases require the most anxious, rigorous and vigilant scrutiny.

In LA v XYZ (Restriction on Father’s Role in Proceedings) [2019] EWHC 2166 (Fam), the LA required permission to make the application to keep information from the father, and needed to satisfy the requirements of section 100(4) CA 1989.

The court was satisfied the relevant grounds were made out; the declaration sought can only be made under the inherent jurisdiction, and the welfare of Z was clearly engaged. It is clearly a serious matter to permit the LA to be released from its duty to inform and consult with parents pursuant to section 22 CA 1989.

With regard to exercise of the inherent jurisdiction, the court referred to the ‘extremely helpful analysis’ by Knowles J in Re X and Y (Children) [2018].

Hayden J stated in Re O (A Child) [2015] EWCA Civ 1169 (paragraph 27)

The objective of the process here is to ensure not only that there is proper planning but the plan for the child continues to be the correct one, developing and evolving as the child’s needs change. It is to fortify the rigour of review that the section imposes a wide-ranging duty to consult, not least with the parents. Even a parent who has behaved egregiously may nonetheless have some important contribution to make in the future. The requirement to solicit the views of a parent is not contingent upon a moral judgment of parental behaviour; it is there to promote the paramount objective of the statue as a whole, i.e. the welfare of the child. These duties are a statutory recognition of the need appropriately to fetter the corporate parent.

Of particular relevance in this case was the evidence that the father had continually attempted to breach an order of 2015 which set out the limited parameters of his involvement in Z’s life. In January 2018 it was suggested that the father’s associates tried to force their way into Z’s new address, causing her significant distress. The court commented on the father’s inability in any of his written documents to recognise or understand the impact of this on Z.

The court therefore accepted the submissions of the LA – Article 6 would, all other matters being equal, favour disclosure to the father of information about Z, but when looking at the competing rights, in particular the Article 8 rights in relation to Z, there was ‘weighty justification’ for compromise of the father’s rights.

Human Rights and Adoption

This is a post by Sarah Phillimore

It’s what we don’t know we don’t know that gets us every time

I was asked to speak at the recent Open Nest Collaborative Conference on Monday 14th October in York – just five minutes on human rights. O easy I thought, just a quick chat about Article 8, job done.

But then Amanda Boorman, founder of the Open Nest Charity showed me what she had written down as important to get across to the audience.

Protocol 1 Article 1 of the ECHR provides

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

Amanda, rightly, thought this was very important from the perspective of the child in the care system, who finds their treasured possessions lost or thrown away as they are moved about from placement to placement.

She also wanted to talk about Article 14

The enjoyment of the rights and freedoms set forth in this European Convention on Human Rights shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

This was clearly very important in light of the growing concern about the impact of poverty on how likely it was to find yourself referred for a child protection concern.

I was shocked to consider that it had simply not occurred to me – the lawyer – to discuss either of those two issues. I was content to trot out our old favourite Article 8 – the right to a family and private life, to psychological integrity – but the right that cuts both ways for the child in the care system; their ‘right’ to retain some kind of link with their birth family, considered of less or even no importance when balanced against their need for a ‘warm, loving forever family’.

So I had to confess my embarrassment that it had not even occurred to me to examine either of these rights, despite the impact both had on children and families in care and adoption proceedings.

I recalled earlier unease when I discussed the ECHR with social workers on Twitter and found that they did not seem aware of the importance of such rights- I wrote about that here.

This concern had also been stated by Brid Featherstone that day, in her talk about the BASW Inquiry into the role of the social worker in adoption

https://twitter.com/SVPhillimore/status/1183689946630148096?s=20

She asked the audience what do YOU think we need in this framework? At every stage of process, to ask – what should social workers be doing?

Andy Bilson then raised the UN Convention on the Rights of the Child -this has has 54 articles setting out the civil, political, economic, social and cultural rights that all children everywhere are entitled to. It is ‘the most complete statement of children’s rights ever produced and is the most widely-ratified international human rights treaty in history’ . The Social Services and Well Being (Wales) Act 2014 makes specific reference to the UN Convention in its ‘overriding duties’ at Part 7 – a person exercising functions under this Act in relation to a child falling within section 6(1)(a), (b) or (c) must have due regard to Part 1 of the United Nations Convention on the Rights of the Child adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989 (“the Convention”).

However I don’t think I have ever made reference to the UN Convention in any English case in my now 20 years of practice. Hopefully the consideration by BASW of a new framework for social work education about human rights can bring the UN Convention more sharply into focus.

Why are Human Rights important?

But if I , the lawyer, couldn’t see the importance of Protocol 1 and Article 14 in the context of adoption, without it being pointed out to me – how can I criticise social workers for not being as alive to the ECHR and its implications as I would wish?

So I thought it worth a reminder of why the human rights framework is so important when looking at State intervention in family life – particularly when the State intervenes to remove children permanently from their family of origin on a low standard of proof.

The European Convention on Human Rights (ECHR)

The European Convention on Human Rights (ECHR) protects the human rights of people in countries that belong to the Council of Europe – this is separate from the European Union and is larger, it has 47 members as opposed to the EU’s 28 (or shortly 27). Therefore it will NOT disappear if Brexit actually happens. This may be a disappointment to those who scoff at human rights as some kind of namby pamby pandering to snowflakes, but anyone who takes that view is revealing a disturbing ignorance about events still in living memory – when a European nation, home to great literature, music and scientific discovery, decided that it would categorise a number of its own citizens as ‘untermensch’, round them up, send them to concentration camps and kill them.

The ECHR was the response to the horrors of the German ‘Final Solution’ to eradicate the Jewish people. It was largely drafted by British lawyers and came into force in 1953.

The Convention guarantees specific rights and freedoms and prohibits unfair and harmful practices.

the right to life (Article 2)
freedom from torture (Article 3)
freedom from slavery (Article 4)
the right to liberty (Article 5)
the right to a fair trial (Article 6)
the right not to be punished for something that wasn’t against the law at the time (Article 7)
the right to respect for family and private life (Article 8)
freedom of thought, conscience and religion (Article 9)
freedom of expression (Article 10)
freedom of assembly (Article 11)
the right to marry and start a family (Article 12)
the right not to be discriminated against in respect of these rights (Article 14)
the right to protection of property (Protocol 1, Article 1)
the right to education (Protocol 1, Article 2)
the right to participate in free elections (Protocol 1, Article 3)
the abolition of the death penalty (Protocol 13)

Although Article 6 and Article 8 will continue to be the rights of overarching importance in care and adoption proceedings, all of us who work in this field have an obligation to become familiar with ALL the rights and freedoms protected. I note for example the right to education and the negative impact that care proceedings often bring to a child’s continuing education, ending up in a foster placement far from a much loved school.

As Elie Wiesel said, having survived the Holocaust – it is by denying our essential humanity that makes it easy to destroy another. Taking someone’s child away is an act that strikes against the psychological integrity of both parent and child. That child may urgently need taking away, the sooner the better; but if we persist in mechanisms of removal that deny both parents and child their fundamental human dignity, then we do great harm.

We don’t fight to preserve the human rights of others simply for their sake – it is also for our own.

What’s in a name? Complainant versus victim.

This is a post by Sarah Phillimore.

The verdict in the Carl Beech case has only just been delivered and the recriminations have begun. If anyone was in any doubt about the dangers inherent in identifying a complainant as a ‘victim’ at the outset of any investigation or court hearing, then here you have it.

An allegation which is not accepted or not proven is not a fact. Someone may identify themselves readily as a victim when in fact they are mistaken – or worse, a fantasist or a liar. Proceedings in either a civil or criminal case hear evidence and make determinations. There is no presumption of guilt in a criminal court. Those making assertions in civil courts must prove them on the balance of probabilities.

I have had cause to be critical of the Ministry of Justice and its recently set up 3 month Inquiry into how the family courts deal with allegations of domestic abuse. My unease stems largely from the fact that the MoJ appear to be operating from the presumption that men are perpetrators of violence and women their victims, even before any evidence has been heard.

My unease has now increased when I learned today of a ‘new service’ set up and funded by the MoJ to deliver support to ‘victims of domestic abuse in family courts’. I queried use of word ‘victim’ and was told the MoJ have set the terms of the service, including its terminology.

I have had long standing concerns about the use of the word ‘victim’ to describe a complainant. In summary:

setting up a complainant as a ‘victim’ at the inception of the court process gives that person a wholly unrealistic view of how their evidence may be treated in an adversarial court process.
Treating one party as a victim prior to any findings made about the factual basis for that status, risks undermining the fairness of the proceedings and casting the respondent as a ‘villain’ at the outset.

This raises so many questions

Who benefits from this dangerous muddying of the forensic waters?
Why isn’t it possible to offer support to anyone going through the court process without first deeming them a ‘victim’ on possibly nothing other than their wish to identify as such?
Is this seen as an ‘easier’ response than improving the woeful physical nature of many court buildings or cheaper than providing legal representation to both sides of a private law dispute?

I have therefore made a FOI request on 8th August 2019 and will update on 29th August.

I would be grateful for the following information, relating to the project which the Ministry of Justice has asked the Citizens Witness Service to run ‘delivering support to victims of domestic abuse in family courts’.

I am told that this service has already launched in Worcester Family Court in July and is about to launch In Swindon. I can find no information about this service on line but was told that the MoJ ‘as funder’ has set the definition and scope of this service, including the terminology of ‘victim’ . Either applicant or respondent – or presumably both – are apparently ‘deemed’ to be victims if they declare themselves to be. The service is offered prior to any determination of any contested allegation by the family court.

I have raised concern that this practice of identifying a complainant as a ‘victim’ prior to such determination of what actually happened, is fraught with difficulty; there is a clear tension between a forensic process that may end in rejecting a complainant’s account and a service that supports someone as a ‘victim’ at the very inception of the court process.

I am told that this service is being offered after ‘wide ranging consultation with victims of domestic abuse’.

I would like to know therefore

1. The time period over which this consultation took place
2. The identities of those individuals or organisations who were consulted.
3. The cost of this consultation
4. The cost of the service to date
5. The anticipated running costs of this service over the first 12 months of its inception.
6. The number and location of those Family Courts who will be running the service

You Had Better Make Some Noise – Abusers will exploit bad laws and poor safeguarding

This is a post by Sarah Phillimore

I was delighted to be asked to speak on July 27th 2019 by Make More Noise.

As the organisers say:

There has been a surge of Feminist activism across the UK in the past year. Women are agitated and organised. We are finding our voice and our voice is saying NO.

Make More Noise are one such group, created to provide a space for women to talk freely and address uncomfortable truths.

Why am I interested in this?

I am a woman. I am a disabled woman. The delusion of self ID as a cure for unhappiness is shown to me, and every other disabled person in the world, every single day. We cannot identify out of ourselves. Every day the people around us and the hostile environments we have to navigate tell us what our reality is. To claim another’s identify is a choice for the privileged – a black woman cannot self Identify as white but Rachel Dolezal can claim to be a black woman and take a Nigerian name.

But I am also a lawyer. Who has worked in child protection for 20 years. I have been campaigning since 2014 for greater openness and honesty in our debate about the family justice system.

So it would seem that my experiences both personal and professional have led me to this moment. There is so much to worry about when we face the erasure of biological sex as a category of identification that I have decided to focus my concerns on the implications for children.

My central hypothesis this: people would rather cause pain than feel it.

We have a lack of mature discussion in our society about issues of grave importance to us all. I am quite sure that social media is partly behind this. I see the law being increasingly used as a weapon to silence people who step out of line, the rights of a few achieving dominance over the rights of many others. I see the efforts of some groups and individuals to push back against this – such as Fair Cop and Maya Forstater – but the fact that such groups have felt compelled to take action is an indication of what a strange place our public discourse has reached. People are sacked for expressing ‘wrong think’, the police are used to enforce one person’s feelings against another person’s Article 10 rights to freedom of expression.

And who suffers most in such a scenario where a legal system is used to prioritise the rights of one minority above others? Those at the very bottom of any pyramid power structure – children.

So what supports my hypothesis?

High court decisions only 3 years apart about transitioning pre schoolers
The NSPCC debacle and the intervention of Prostasia

The shifting position of the High Court

The case of Re J in 2016 involved a 4 year old, who his mother claimed ‘disdained his penis’ and wished to be a girl. The High Court did not agree and ordered that the child lived with his father. Mermaids supported the mother and issued an angry press release after the judgment saying they would appeal – they did not. I wrote about this case here which contains links to the judgment and press release.

However, only three years later came the case of Lancashire County Council v TP & Ors (Permission to Withdraw Care Proceedings) [2019] EWFC 30. This involved foster carers who had two unrelated children in their care who decided they wanted to transition – the youngest aged 3 years old. [EDIT apologies – youngest was transitioned at FOUR YEARS OLD. Doesn’t make any difference to my argument] The LA were applying to withdraw care proceedings, so it was a different situation from re J. But even so, its interesting to see how the Judge framed this issue of transitioning pre schoolers:

Notwithstanding even the Guardian’s caution in respect of the openness of [the foster carers] to the possibility of an alteration in the children’s attitude to their gender identity I conclude that Dr Pasterski’s evidence demonstrates that it is obvious that neither of these grounds would meet threshold. Taken together with the panoramic evidence of the child focused approach of [the foster carers] it is overwhelmingly obvious that neither H nor R have suffered or are at risk of suffering significant emotional harm arising from their complete social transition into females occurring at a very young age. The evidence demonstrates to the contrary, this was likely to minimise any harm or risk of harm. The evidence does not support the contention that it was actively encouraged rather than appropriately supported.

How on earth is it ‘overwhelmingly obvious’ that a 3 year old will experience no harm from a decision to transition from male to female? I have a difficulty here with such an uncritical acceptance of the evidence of Dr Pasterski. Not merely because I find it extremely hard to accept that any 3 year old has the understanding or the language to communicate a desire to change sex, but I note the approach of Dr Paterski in an earlier case.

Jay v Secretary of State for Justice [2018] EWHC 2620 (Fam) (08 October 2018) considered a man in his 40s who wished to become a woman. While Dr Paterski opined without any reservation that this was a genuine case of gender dysphoria, Dr Barrett struck a more cautious note, given that some of Ms Jay’s reported history was ‘directly at odds’ with documentary records.

“… If collateral corroboration is not convincingly elicited I would have grave doubts and wonder whether [Ms Jay]’s somewhat dependent personality had caused her to unwisely latch onto a change of gender role as a seemingly universal solution to both why her life had gone wrong and how it might be rectified.”

It is worth contemplating, with considerable unease, just what would happen if Re J was being heard and decided this week. Would the High Court have been able to protect a little boy from the mother who was telling everyone he ‘disdained’ his penis? Or would he have been sacrificed to what appears to be compulsive drive to be seen as ‘woke’ and ‘inclusive’ ?

The NSPCC debacle and the intervention of Prostasia

All of you I am sure are familiar with the NSPCC’s public response to people who raised concerns about one of their employees who allegedly filmed himself masturbating at work and published a video online. I am pleased that, belatedly, they had the sense to realise that telling people who raised concerns that they were bigots who should be reported was not an appropriate response and they have referred themselves to the Charity Commission. I await with interest the outcome of that.

What happened to me on Twitter after that was also interesting.

I was discussing that people should consider not making further charitable donations to the NSPCC but consider smaller local charities. An organisation called Prostasia popped up and suggested they might be a worthwhile beneficiary. Which was odd as a quick google showed them to be based in California and advocating ‘sex positive’ child protection, whatever that means.

What I suspect it means is support for men who want to have sex with children. This suspicion was confirmed when another Twitter user found a copy of a mug shot of a man who was active in the conversation and on the Prostasia website. This stated he had been arrested in 2012 for sexual conduct with a child under 13. Prostasia then blocked us all and then tried to blackmail me, which is a whole other story I don’t have time for now – but is a clear indication of the murky ethical waters in which this organisation swims.

What does this show me?

The inability or unwillingness of both pro-trans activists and pro-paedophile groups to distinguish teenagers from pre-schoolers.

Because what Prostasia has in common with the views of the legal adviser for Mermaids is a persistent refusal to identify what they mean by ‘a child’.

A child is defined as a person aged 0-18.
The majority of children under 12 are unlikely to be considered ‘Gillick competent’ to make important decisions about their own lives.
We have a difficult and grey area around 13-16 where children may well as individuals have greater capacity than the law allows them. But we have to draw a line somewhere.
And for children, sex and the criminal law, that line is firmly set at 13 years. See the Sexual Offences Act 2003. A child under 13 cannot consent to sex. It is rape.

I therefore consider myself on firm ground to say that the vast majority of children under 12 neither want nor need exposure to adult sexuality. It is important that they are allowed the time and space to develop their own identities and their own sexual preferences; free of the coercion or manipulation of an adult. And once they cross that threshold into adulthood they should be free to live and love as they wish, according to the boundaries of the existing laws. Sexual activities between consenting adults is none of my business or concern.

What I have witnessed developing over the last year or so has caused me increasing concern about the extent to which some men wish to re-frame the discussion about the sexuality of children. They wish to push back the boundaries regarding age and consent. This seems clear to me because of the extent to which they are often coy about stating exactly how they define ‘a child’. The difference between – for example – a typical 9 year old and a typical 16 year old is vast and in every domain; physical, sexual, social.

And what is the problem with this?

I was alerted to a blog post in March of this year by the Mermaids legal adviser. The author remained anonymous but was arguing that

….someone’s gender identity, at any age, must be respected. A child identifying as trans, whether it has been submitted this is as a result of harm or not, is identifying as trans and that must be respected throughout proceedings…More often than not, if a child says they are trans, they will be trans.

I commented at the time

As I hope I have made clear, any such assertion made without attempting even the barest of analysis of the vast gulf in understanding and capacity between a 6 year old and a 16 year old is an assertion of no value. Worse than that, it is an assertion which attempts to pave the way to leave young children entirely unprotected from their parents.

Most parents love their children and want to do what is in their best interests. A small minority of parents fail to do that. The courts absolutely must be ready, willing and able to step in and to protect such children.

Anyone who is unwilling or unable to see the difference between a child of 6 and a child of 16 is someone who wishes to blur the boundaries around child protection and safeguarding. Why would anyone wish to do this? I can only assume it is to make it easier to secure the eradication of the rights of children to be protected from the imposition of men’s sexual will. And what is worse, their rights will be eradicated at the same time we are told WE are the villans, WE are the bigots.

The facts are always friendly. That was and will remain my rallying cry. Lets have proper discussion . Not all who wish to transition do so out of realistaion of their ‘essential self’ – a self that no one apparently can define. Some will do so because they are predators. Predators predate. That is what they do. For example, the recent trial of convicted paedophile Carl Beech revealed that he had volunteered at the NSPCC between 2012 and 2015 .

The wolf is no longer at the door. The wolf Is in the kitchen and claiming a legal right to be there. And I am now too old and too fed up to do anything other than speak up. This will not be done in my name.

"abusers will exploit bad laws and poor safeguarding" – this is the nub of it. I cannot understand why this simple, obvious fact, proven time and time again throughout history, is denied by so many people.

— John Stepek (@John_Stepek) July 23, 2019

Jessica Yaniv is hosting a topless LGBTQ swimming event for girls (“people”) 12 and up where parents and guardians are not permitted to be present. pic.twitter.com/WCN2MUbo32

— Ian Miles Cheong (@stillgray) July 22, 2019

My response to the Inquiry Assessing risk of harm to children and parents in private law children cases

This is a post by Sarah Phillimore

‘Good practice’ would be to commission serious and proper research into the actual nature of the problem, rather than inviting personal anecdote to take the place of robust data. I am very concerned about the nature of this Inquiry; the manner of its inception and the choice of its Panel. Why are there no representatives of any father’s charities? Why has the Inquiry proceeded on entirely partial assumptions about Judges simply ignoring evidence? Is evidence going to be gathered about the rate of false or exaggerated allegations of violence? About the impact of LASPO on encouraging such in order to qualify for legal aid?

Take the survey here

Response ID ANON-CNG1-5F53-C
Submitted to Assessing risk of harm to children and parents in private law children cases
Submitted on 2019-07-19 20:27:16

Your experience of private law children proceedings

1 Please tell us in your own words about how the family court responded to allegations of domestic abuse or other serious offences in
your case, and/or the effects on you and/or your children.

I have represented mothers, fathers and children in contested private law cases for 20 years now. In my experience, the family courts respond as appropriately as they can, taking into account the serious difficulties caused by lack of availability of legal aid and judges. The failings in the law, in my view, has been a reluctance to hold early findings of fact and allowing intractably hostile parents to drag out proceedings over many years, by which time the children have ‘aged out’. I have not experienced any judge being ‘ignorant’ of issues around abuse and violence. I do not think Judges need ‘training’ about violence – they need space and time
to adjudicate properly upon cases. I am extremely concerned that many calling for ‘training’ appear to have a financial interest in such training becoming widespread.

2 Was your experience in the family court:
In 2018-2019, In 2014-2017, Before 2014

Raising allegations of domestic abuse or other serious offences in private law children proceedings

Are there any difficulties in raising the issue of domestic abuse or other serious offences against a parent or child, in private law children proceedings?
Yes

The difficulties in raising issues of domestic violence, in my view, clearly do NOT arise from misunderstanding or ignorance of the law. The difficulties arise from the lack of available court time and the increasing number of litigants in person. There is clearly a lack of understanding about the forensic process and the requirements of proof amongst those who are not legally trained. Better education about this might help. I suspect the ‘I believe’ policy has done enormous harm here. Women come to court expecting to be ‘believed’ and it is a shock to find out that the court process demands proof.

Children’s voices

4 How are children’s voices taken into account in private law children proceedings where there are allegations of domestic abuse or other
serious offences? Do children feel heard in these cases? What helps or obstructs children being heard?
It is my experience over 20 years of representing children that the vast majority do NOT wish to participate in court proceedings. They want a decision to be made about their future by an adult who cares about what happens to them. They generally cannot and do not wish to engage with the evidence. My experience of guardians is generally positive; they appear to be committed and produce thoughtful and helpful reports. I have also noticed an increased willingness amongst judges to see and speak to children outside the actual proceedings, which I think is very positive.

The procedure where domestic abuse is raised

5 Are fact-finding hearings held when they should be?
No
There appears to be a reluctance to hold findings of fact on the basis that ‘it won’t help’ if there is a perception that the allegations are not ‘serious’ enough to mean that direct contact would not be ordered. This seems to offer only a short term gain; my experience is that allegations which are not ‘put to bed’ continue to cause considerable difficulty for the proper resolution of contested private law cases.

6 Where domestic abuse is found to have occurred, how is future risk assessed and by whom? Is risk assessed only in relation to
children, or also in relation to the non-abusive parent?
In my experience risk is assessed by CAFCASS, a social worker or the judge. Risk is generally seen ‘in the round’. I am not aware of any Judge who would say that a person who is violent to a parent but not the child could still be a ‘good parent’.

7 How effective is Practice Direction 12J in protecting children and victims of domestic abuse from harm?
It does what it can. But it clearly cannot assist in those cases – sadly frequent – where women will continue or resume a relationship with a violent man. Nor can it mitigate against structural problems such as lack of alternative housing.

8 What are the challenges for courts in implementing PD12J? Is it implemented consistently? If not, how and why do judges vary in their
implementation of the Practice Direction.
In my experience in London and and on the South Western Circuit I have not noticed any worrying inconsistencies in implementation of the PD.

9 What has been the impact of the presumption of parental involvement in cases where domestic abuse is alleged? How is the
presumption applied or disapplied in these cases?

The presumption is a joke. It is meaningless. It has no impact.

10 Where domestic abuse is found to have occurred, to what extent do the child arrangement orders made by the court differ from orders made in cases not involving domestic abuse?

Depending on the level of severity of abuse, the distinction is in the nature and degree of contact ordered. When serious allegations are found proved, the order is
invariably for indirect contact only.

Safety and protection at court for victims of domestic abuse and other serious offences
11 What is the experience of victims of domestic abuse or other serious offences in requesting arrangements to protect their safety at
court?
Over 20 years I have found the courts become much more responsive to issues around safety at court. However, much of this depends on the physical resources of the court building itself. Some are simply not fit for purpose and it is very difficult in those buildings to ensure that the parties are kept separate.

12 Do family courts make the right decisions about whether an alleged victim of domestic abuse or other serious offences is vulnerable?
Yes
Vulnerable people clearly need appropriate help and representation at court. There appears to be good and widespread understanding amongst lawyers about what is needed.

13 What is the experience of victims of domestic abuse and other serious offences of being directly cross-examined by their alleged
abuser/alleged perpetrator? What is their experience of having to ask questions of their alleged abuser/perpetrator?
I have never known this to happen. When my client was facing XX by a former partner she alleged was abusive, the Judge asked questions. But this is clearly a dreadful situation and should not be tolerated. Both alleged victim and alleged perpetrator ought to have legal representation. It is not fair to ask that the Judge undertake this role.

14 What are the challenges for courts in implementing FPR Part 3A and PD3AA? Are they implemented consistently? If not, how and why
are they inconsistent?
Resources and time.
My experience is that they are implemented consistently.

15 How effective are these provisions in protecting victims of domestic abuse or other serious offences from harm in private law children
proceedings?
I have no idea. The proceedings themselves are very difficult for vulnerable parties, regardless of the efforts made. I do not know what is meant by ‘effective’ in this question.

Repeated applications to the family court in the context of domestic abuse

16 What evidence is there of repeated applications in relation to children being used as a form of abuse, harassment or control of the
other parent?

I do not think this happens very often. Such applications may well be interpreted by one party as an attempt at control. But people are entitled to make applications to the court to secure their legal rights. I have found Judge’s willing to make section 91(14) directions in the appropriate circumstances.

17 Under what circumstances do family courts make orders under s.91(14)?
add text in box:
They are mindful of the guidance of the Court of Appeal and consider it a serious application.

18 How do courts deal with applications for leave to apply following a s.91(14) order?
add text in box:
i have very little experience of this, which suggests to me it is not a common occurrence

19 What are the challenges for courts in applying s.91(14), including applications for leave to apply? Is there consistency in
decision-making? If not, how and why do inconsistencies arise?
I have found the majority of tribunals to consistently apply the Court of Appeal guidance. One judge did not; I appealed her decision and succeeded on that point. She wrongly stated that section 91(14) was not draconian and made an order against my male client.

20 How effective are s.91(14) orders in protecting children and non-abusive parents from harm?
add text in box: I have no idea. They appear to be an effective safeguard against unmeritorious applications.

Outcomes for children

21 What evidence is there of children and parents suffering harm as a result of orders made in private law children proceedings, where
there has been domestic abuse or other serious offences against a parent or child? (This can include harm to a parent caused by a child arrangements order which requires them to interact with the other parent in order to facilitate contact).

This is the problem. There is no ‘evidence’. There is a wealth of anecdote and complaint. But I am aware of no robust evidence. I do not consider the Women’s Aid reporting to be robust. This inquiry is going to invite a great deal of personal anecdote which may or may not have a firm factual foundation. I do not consider this is the way for a mature democracy to proceed to make decisions about any kind of justice system and I am frankly alarmed by this venture and the questions I have just attempted to answer.

22 What evidence is there about the risk of harm to children in continuing to have a relationship – or in not having a relationship – with a
domestically abusive parent (including a parent who has exercised coercive control over the family)?
I REPEAT ANSWER ABOVE

23 What evidence is there about the risk of harm to children in continuing to have a relationship – or in not having a relationship – with a
parent who has committed other serious offences against the other parent or a child such as child abuse, rape, sexual assault or murder?
I REPEAT ANSWER ABOVE

Any other comments or suggestions

24 Are there any examples of good practices in the family courts or which the family courts could adopt (perhaps from other areas of law)
in relation to the matters being considered by the panel?
‘Good practice’ would be to commission serious and proper research into the actual nature of the problem, rather than inviting personal anecdote to take the place of robust data. I am very concerned about the nature of this Inquiry; the manner of its inception and the choice of its Panel. Why are there no representatives of any father’s charities? Why has the Inquiry proceeded on entirely partial assumptions about Judges simply ignoring evidence? Is evidence going to be gathered about the rate of false or exaggerated allegations of violence? About the impact of LASPO on encouraging such in order to qualify for legal aid?

25 Do you wish to make any other comments on the matters being considered by the panel?
write text in box:
I think I have said enough. I hope my cynicism and alarm at this exercise prove unfounded

EDIT

Have a look at this. The aim is to protect against ‘perpetrators’. But tricky thing is this – who is deciding they are perpetrators? Is mere assertion now enough?

We’re taking action on concerns raised about protecting children and victims of #domesticabuse and other harms in #familycourts.

Share your experience of how family courts manage the safety, health & well-being of children.

Have your say: https://t.co/DbUNLivEGJ pic.twitter.com/H3jlnlAgjd

— Ministry of Justice (@MoJGovUK) July 19, 2019

The right of journalists and bloggers to attend court – yes they can.

I don’t want journalists to report about my hearing. What can I do?

But what if I want to exclude journalists before the hearing starts?

What is the Press Association Injunction Alert Service?

The notification system

The Practice Direction 12I and Practice Note

So how do I know who and how to serve?

Further Reading

REPORTING RESTRICTION ORDER

EXPLANATION

ORDER

SCHEDULE 1

SCHEDULE 2

SCHEDULE 3

SCHEDULE 4

SCHEDULE 1

SCHEDULE 2

SCHEDULE 3

SCHEDULE 4

Further reading

11.25 – 12.05 Reforming care proceedings in England and Wales – Special Guardianship Orders, improving standards nationwide and innovative approaches to care

The narrative you embrace clearly has consequences for the direction of travel of care proceedings.

TL:DR Summary of concerns

Further reading

Detailed comments on the CPS pack

Further commentary on the videos by a colleague at Fair Cop

Further Reading

‘Show not tell’

Restricting parent’s access/participation in proceedings

Application to prevent a parent even knowing about care proceedings

Stopping a party getting access to certain papers

Further reading

It’s what we don’t know we don’t know that gets us every time

Why are Human Rights important?

The European Convention on Human Rights (ECHR)

Further reading/listening

I have therefore made a FOI request on 8th August 2019 and will update on 29th August.

Further Reading

Why am I interested in this?

My central hypothesis this: people would rather cause pain than feel it.

So what supports my hypothesis?

The shifting position of the High Court

The NSPCC debacle and the intervention of Prostasia

What does this show me?

And what is the problem with this?

FURTHER READING

Response ID ANON-CNG1-5F53-C Submitted to Assessing risk of harm to children and parents in private law children cases Submitted on 2019-07-19 20:27:16

Your experience of private law children proceedings

Raising allegations of domestic abuse or other serious offences in private law children proceedings

Children’s voices

The procedure where domestic abuse is raised

Repeated applications to the family court in the context of domestic abuse

Outcomes for children

Any other comments or suggestions

Response ID ANON-CNG1-5F53-C
Submitted to Assessing risk of harm to children and parents in private law children cases
Submitted on 2019-07-19 20:27:16