Miscellaneous

Assessing Risk of Harm to Children and Parents in Private Law cases.

Final Report of the Ministry of Justice 2020

In May 2019 a ‘3 month inquiry’ into issues of domestic abuse and applications to court about children was announced by the Ministry of Justice. I expressed considerable scepticism at the time, not least scoffing about the wholly unrealistic timescales proposed.


In that at least I can see I was correct. The final report was published at the end of June 2020 so a 13 month process. Even that seems astonishingly quick to me. It is without doubt an impressive piece of work, covering a great deal of important and necessary conversations about the family justice system. All practitioners need to read it, digest it and think about it carefully .

I will not pretend that I am about to unpick it line by line. But I thought it might be interesting or helpful to share my immediate concerns.

In May 2019 I said this about the real problems facing the family court system:

Family courts are not the arenas for frightened or angry people. An adversarial court system that requires proof is a hard place to be for those who believe themselves to be or who actually are victims of violence.
I quite accept that most of us entering into a relationship do not at the outset start gathering evidence of our partner’s appalling behaviour. One of the real evils of coercively controlling relationships is the very long time it can take to work out what is going on and to gather the resources and courage to leave.
There appears to be widespread public ignorance about how the forensic process operates and how you prove an allegation in court. That is not anyone’s ‘fault’ but it is a great shame more people are not prepared to accept their lack of understanding before diving into the debate.
But the elephant in the room is the removal of resources. Social workers and Cafcass need time and space to conduct investigations, to thoughtfully reflect, and to build relationships with parents. Courts dealing with private law disputes need to offer judicial continuity and swift fact-finding hearings – which currently doesn’t happen because we don’t have enough judges or courts.
The removal of legal aid from private law family cases has led to a huge rise in the number of litigants in person, with obvious and serious problems for how cases are managed. This removal was endorsed by Parliament in 2012 with the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012.
Research by Citizens Advice in 2015 stated what we all know to be true: “Restricted access to legal aid is one of the biggest barriers to support for victims of domestic abuse in England. In their work helping victims of domestic abuse, only 12% of advisers reported being unaffected by the changes that came into force from April 2013.


The aim of the report is to provide an understanding of how effectively the family courts identify and respond to allegations of domestic abuse and other serious offences, in cases involving disputes between parents about the arrangements for their children. These are known as ‘private law children proceedings’ because they are a dispute between private individuals and not any agency of the State.

The report sets out its summary and recommendations. The expert panel received ‘over 1,200 responses’ from individuals and organisations and held roundtables. The evidence focused on domestic abuse.

The report noted key themes

  • Resource constraints; resources available have been inadequate to keep up with increasing demand in private law children proceedings, and more parties are coming to court unrepresented.
  • The pro-contact culture; respondents felt that courts placed undue priority on ensuring contact with the non-resident parent, which resulted in systemic minimisation of allegations of domestic abuse.
  • Working in silos; submissions highlighted differences in approaches and culture between criminal justice, child protection (public law) and private law children proceedings, and lack of communication and coordination between family courts and other courts and agencies working with families, which led to contradictory decisions and confusion.
  • An adversarial system; with parents placed in opposition on what is often not a level playing field in cases involving domestic abuse, child sexual abuse and self- representation, with little or no involvement of the child.

I agree with much of this. But there are some things summarised there and discussed in greater detail in the body of the report which I find frankly surprising in any document co-produced with a number of senior laywers.

Pro contact culture and other curious statements

The Panel say this about pro-contact culture

Previous literature has identified the ‘pro-contact culture’ of the family courts and we have adopted this terminology as appropriate to capture the systemic and deep-seated nature of the courts’ commitment to maintaining contact between children and non-resident parents. A ‘culture’ describes the particular set of beliefs and behaviours (sometimes unconscious or taken-for-granted) of a group of people. Most institutions develop a distinctive culture over time, and the family courts are no exception. This does not mean that all members of the institution necessarily agree with or conform to all aspects of the culture. But it does mean that there is a strong pressure to conform, and that cultural change does not happen easily. ‘

The pro-contact culture’ is not some whimsy or consequence of submission to the patriarchy. It is the law. It has long been the law. It is enforced in various decisions of the European Court. I do not understand why the law is reframed here in clearly pejorative terms as a ‘culture’ .

Children have a right to a relationship with both parents, so long as they are safe. I agree however, that a system starved on resources and which operates on an adversarial platform may end up giving a crude prominence to the presumption that contact is in a child’s best interest.

I also reject and am astonished to see this comment about liaison with the criminal justice system:

Silo working can result in evidence of abuse accepted in one system, for example the criminal courts, not being acknowledged or effectively engaged with in the family court.

Police disclosure and findings of the criminal courts are vital pieces of evidence and never overlooked in any case where I am instructed. Of course, getting the information from the police quickly is another matter. Again an area where lack of resources make it very difficult for the family court system to do its job.

The Panel comments:

Many respondents reported that regardless of the particular circumstances, even where the most serious allegations of domestic abuse were raised, courts expected that parents would work together to facilitate contact arrangements.

Raising an allegation is not the same as proving it. Where serious allegations are made the court needs to determine them by way of a finding of fact. I accept, and this has been known for some time, that early findings of fact are often essential. An assertion of something another does not accept and which has not already been proved, is not a fact and never can be ‘a fact’.

We can ‘raise’ whatever allegations we like. To ask allegations to impact on the proceeses of a legal system they have to be proven. I am very surprised and uneasy to read a phrase like this in a document produced by the Ministry of Justice.

The value of self selective lived experience.

This is without doubt my key concern. I am worried that what I feared has come to pass. There was no scrutiny of the reliability of the accounts given to the Panel and yet such indivudal accounts represented the vast majority of responses to it. 87% of responses ‘in scope’ were from individuals with personal experience of private law children proceedings – mainly mothers and their families.

The report makes it clear the Panel ‘were unable to review individual case files’. But reliance on evidence from an entirely self selecting group apparently causes little concern as this was ‘supplemented with a literature review and a review of relevant case law.’ So I am not quite sure what the Panel mean when they later say ‘In practice, the large number of responses meant that the panel needed an extra six months to ensure that the evidence could be thoroughly analysed and reviewed’.

What exactly were they reviewing? Seeing case law and ‘literature’ through the lens of ‘lived experience’ that you accept as true without investigation sounds to me suspiciously like the seeds of a self fulfilling prophecy.

It is clear the responses from the lawyers were different to the responses from the mothers:

Submissions from legal professionals described their experience in cases involving abuse which varied in persistence and severity, whereas most mothers described relatively severe and sustained abuse, almost invariably involving coercive control.

No question appears to be raised as to why the lawyers saw things so differently. I think it is very important to robustly test assertions which are so serious. Such as this –


Respondents felt that orders made by the court had enabled the continued control of children and adult victims of domestic abuse by alleged abusers, as well as the continued abuse of victims and children. Many submissions detailed the long-term impacts of this abuse manifesting in physical, emotional, psychological, financial and educational harm and harm to children’s current and future relationships.
Many respondents felt that the level of abuse they and their children experienced worsened following proceedings in the family court. There were concerns that efforts to report continuing abuse were treated dismissively by criminal justice and child welfare agencies because of the family court orders. Many respondents also highlighted the negative impacts felt by children who were compelled to have contact with abusive parents, and the burden placed on mothers and children to comply with contact orders compared to minimal expectations on perpetrators of abuse to change their behaviour.

Again, there seems to be no attempt to clarify the nature and status of the alleged victims and perpetrators. Were the ‘perpetrators’ referred to here FOUND TO BE SO in either a criminal or civil court? Or are we back in territory of allegations being raised? I have never known a case where a person found to have perpetrated serious abuse was simply left to get on with it and unsupervised contact ordered.

But I have experienced many cases where fathers never had direct contact with their children again after allegations raised about their behaviour by the children’s rmothers.

The Panel does recognise the limitations of its approach, but concludes that it doesn’t impact their ability to make robust recommednations

Nor can we tell how representative the submissions are of all court users and professionals. As with all inquiries, the individual and organisational submissions and engagement in the data gathering process were voluntary. There is therefore likely to be some selection bias. Individuals who are largely satisfied with the process and outcomes in the family courts may have less incentive to provide evidence. Similarly, professionals who work in the system may have more incentive to defend how the system operates.
Nor can we test the accuracy and completeness of the accounts given. It is not possible to have an ‘objective’ account of what occurred in each case. Qualitative evidence presents the perceptions and views of individuals and organisations that respond. These views will be influenced by the attitudes, cultural context, organisational culture, specific role in the proceedings and individual biases of those providing evidence. They can also be subject to recall bias. The panel was well aware that submissions can be based on misunderstandings, misapprehensions or deliberate distortion as well as wishful thinking.
Despite these inherent limitations, we are persuaded that the evidence gathered does identify systemic problems with how family courts deal with domestic abuse cases and cases raising other risks of harm in private law children cases. It is unlikely that the panel has managed to uncover only isolated mistakes or rare events. The evidence does point to issues affecting multiple cases across the system and with potentially serious effects, although we were also able to identify instances of good practice.


I think this is powerfully naïve. I am particularly concerned by this comment:


…majority with detailed descriptions that appeared to provide authentic accounts of individual experiences.

‘Appeared to provide’ just isn’t good enough when it is used to scaffold the following comments. This has never been my experience in any private law case over 20 years.

Many respondents argued that in ordering direct contact in the majority of cases, the court ignores, dismisses and systematically minimises allegations of domestic abuse and simply treats the case as if domestic abuse was of no continuing relevance. Too often, even where findings of domestic abuse are made, the submissions suggest that victims are told to ‘move on’ and to progress contact, even though the perpetrator has shown no or minimal effort to accept or engage with the findings made against them. Thus, the victim is left with the responsibility of ensuring that contact takes place, including liaison with the abuser, and sometimes against the expressed wishes of the child.

We can see how this is being interpreted beyond the Ministry of Justice and how the Panel’s willingness to accept the unverified accounts of Respondents may now play out.

“The Court Said” has already launched a petition. This is an organisation supported by a number of women with ‘personal’ experiences of the family court system. Two of these women are Samantha Baldwin and Victoria Haigh, both subject to serious findings in the family court about the harm they inflicted on their children and both enthusiastic self identified victims of the family court.

A self identifying ‘journalist’ Richard Carvath who also supports the Court Said has just been convicted of harassment due to his campaigning against the family courts which he believes is justified because of the ‘detailed’ accounts given to him of injustice.


It is or should be abundantly clear that ‘personal’ experiences do not provide the whole story. And that those with axes to grind need to be treated with polite scepticism.

If the accounts of the Respondents to the Panel are simply accepted, its clear what The Court Said wants to happen now. I quote from the petition.

The government needs to launch an immediate case review and a mechanism for recourse for victims affected by the crisis. Thousands of children have been removed unlawfully from victims of Domestic Abuse with no prospect of reversing the situation. Many more thousands are living in fear with unsafe Court decisions impacting families dealing with a Domestic Abuser. Without recourse, this will continue.
The report publishes the harms endured by survivor families in the Family Court system. It is time to right the wrongs and provide compensation for victims, whose lives, families and futures have been forever marked, or even destroyed by an unsafe decision in the Family Court.
We call upon the government urgently to immediately review all cases that have gone before the proposed reforms, and the ones that will suffer during the transition to reform. We call upon the government to reverse decisions where possible and provide compensation to those affected by the crisis. #thecourtsaid

Conclusion

The Panel Report sets out a lengthy list of recommendations and hopes, some of which sound sensible, some a little more optimistic – the Panel should probably have considered a little more carefully the impact of the ECHR on their recommendation to end a presumption of parental involvement for e.g.

But no one could argue in good faith with efforts to make sure that the wishes and feelings of children are properly heard and they are not put under pressure by either parent to toe any particular line.

But I am afraid I cannot read something like this without a hollow laugh

The panel hopes that its recommendations will empower judges, lawyers, Cafcass, Cafcass Cymru and other family justice professionals to work to their best potential in private law children’s proceedings, and above all, that its recommendations will benefit children and parents experiencing domestic abuse.

If parents in the system don’t have lawyers, if there is no where in the court bulding to sit and talk, let alone wait in safety, if CAFCASS don’t get the time and resources they need to do their job properly, if anyone’s account is simply accepted without challenge, all of this is meaningless.

Resources are rightly identified in this report as a major stumbling block to any effective change and I agree wholeheartedly with this

The panel believes that the shortage of resource affects the whole system, but is most concerning for domestic abuse cases, which are likely to be more resource-intensive to address than non-abuse cases. Safeguarding requires time and resources to do a detailed and careful risk-assessment; the need for special measures requires adequate court facilities; fact-finding hearings require additional judicial time; and additional interventions may be required to make any child arrangements safe. This all costs money. The scarcity of resources mean that the system finds it difficult to address the additional demands presented by domestic abuse cases:

So what will be done about that?

Nothing. No doubt any spare cash in the system will now go to setting up further serious case reviews as is urged by ‘The Court Said’. This seems to be how we roll now as a nation.

I hope I am wrong. But I doubt I am. Let’s meet in a year’s time and see what came to pass.

EDIT July 4th 2020. The Government’s plans to implement its reforms are set out here. Their plan seems to involve yet another pilot scheme.

I do hate being right all the time.

Further reading

CAFCASS tool for assessing domestic abuse

The Empathy Gap 14th June 2020 – Commentary on Adrienne Barnett in “A genealogy of hostility: parental alienation in England and Wales”, Journal of Social Welfare and Family Law (Jan 2020). The paper discusses the role of parental alienation within the English and Welsh family courts.

The Empathy Gap 11th June 2020 – Commentary on “U.S. child custody outcomes in cases involving parental alienation and abuse allegations: what do the data show?”, By Joan S. Meier, Journal of Social Welfare and Family Law 42:1, 92-105 (2020)

Vaccination of children; how does the Family Court handle disputes?

This is a post by Sarah Phillimore

This post considers how the court should deal with disputes between those who have parental responsibility, about whether or not a child should be vaccinated. Vaccines are routinely administered in England; see Public Health England’s guidance in ‘The Green Book: Information for public health professionals on immunisations’. Despite the routine nature of vaccination, there remains a significant minority of those who object, some fearing that vaccines cause harm. The Court of Appeal however has given a very clear ruling that there is no medical evidence to support an argument that these routine childhood vaccines are harmful, and that local authorities do not need to seek the approval of the High Court before agreeing to vaccinate children in their care.

In February 2020 there was a decision in care proceedings about parents who objected to their child being vaccinated, which can be found at  [2020] EWHC 220 (Fam). The Judge commented that the father was “driven by the fundamental belief that neither the court nor the State, through the arm of the Local Authority has any jurisdiction to take decisions in relation to his children”.

The Judge heard medical evidence about the benefits of immunisation in general and in particular with regard to the child before him. He found that vaccination should not be characterised as ‘medical treatment’ but rather ‘a facet of public preventative health care intending to protect both individual children and society more generally’.

The Judge was satisfied that the local authority could authorise the vaccination of the child under section 33(3) of the Children Act 1989. This is significant, as previous cases (see Re SL (Permission to Vaccinate) [2017] EWHC 125 ) had set out that this issue had to be decided using the ‘inherent jurisdiction’ of the court – a jurisdiction which can only be exercised by the High Court or by Circuit Judges with special authorisation. This has the potential to take more time and cost more money to get a decision.

Therefore the Judge felt it appropriate to allow his decision to be appealed pursuant to the Family Procedure Rules 30.3(7) – ‘contradictory decisions on the substantive issue’

By the time the matter got to the Court of Appeal, no one was arguing that the child should NOT be vaccinated but everyone wanted clarity about what route people needed to use in any future cases like this.

Judgment was handed down on 22nd May 2020 in H (A Child Parental Responsibility : Vaccination) [2020] EWCA Civ 664

Is vaccination a ‘grave and serious’ matter?

The Court of Appeal decided that in order to make the right decision about the route to take, it was necessary to consider some broader questions, and in particular whether or not vaccination is to be considered ‘a grave or serious matter’ or should be regarded as ‘medical treatment’.

These questions also had to be considered in two different contexts: ‘public law’ proceedings (where the local authority shares parental responsibility with the parents) and ‘private law’ proceedings (where only individuals such as the mother and father share PR).

As a general principle, the State should be slow to interfere with how parents exercise their rights and duties with regard to their children and respect their right to do so, provided that they don’t put the child at risk of significant harm.

Giving consent to having a child vaccinated is clearly an exercise of parental responsibility. Most consider the decision to vaccinate ‘reasonable and responsible’. However it is not a legal requirement. Therefore a refusal to vaccinate your child and nothing else would be very unlikely to be considered ‘significant harm’ to the extent that the State could interfere and apply for a care order under section 31(3) of the Children Act.

The child in the care of the local authority

The starting point for a child in local authority care is section 33 of the Children Act 1989. This gives the LA parental responsibility alongside the parents and the power to ‘override’ the parents provided that what it proposes is necessary to safeguard the welfare of the child. The LA cannot however change a child’s religion or name, or take the child out of the country using this section.

This applies to ‘interim’ and ‘final’ care orders. However, when decisions ‘with profound or enduring consequences’ needed to be made – such as serious medical treatment – the general view is that it was not right for the LA to use section 33 to override a parent’s wishes without further scrutiny – the matter needed to come before the High Court to be resolved.

So – is consenting to vaccination something that a LA can do without the High Court’s permission? Or is this ‘serious medical treatment’?

Medical evidence about the benefit of vaccines is clear

The Court of Appeal first examined the current established medical view – routine vaccination of children is not only in the best interests of the children but also the general public.

The Court of Appeal acknowledged that most – but not all – of the concerns about the safety of vaccinations relate to the MMR vaccination. This was introduced in 1988. Concerns arose that there was a link between the MMR vaccine and autism following the publication of a paper in The Lancet by Dr Andrew Wakefield. This attracted widespread publicity and caused a drastic reduction in MMR vaccination rates and corresponding increase in cases of measles. It then transpired that Dr Wakefield had not declared a number of conflicting interests and by 2004, 10 of the 12 co-authors of the 1998 paper had withdrawn their support for the claimed link with autism.

Dr Wakefield was then investigated by the General Medical Council for misconduct and in May 2010 he was struck off the medical register and The Lancet formally retracted his paper. No mainstream medical opinion now accepts a link between vaccination and autism.

The Court of Appeal accepted that the medical evidence:

overwhelmingly identifies the benefits to a child of being vaccinated as part of the public health initiative to drive down the incidence of serious childhood and other diseases.

The Court of Appeal were very clear that this short recitation of such historical events was necessary to ‘bring an end’ to the parade of expert witnesses in cases involving vaccination, to demonstrate its medical benefits, unless a child has ‘an unusual medical history’ – see for example in Re C and F (Children) [2003] EWHC 1376 (Fam).

There could be other issues than purely medical over vaccinations which impact on a child’s welfare – for example the parent’s religious belief – but the Court of Appeal have decisively put to bed any lingering doubts about the medical benefits of vaccination.

Regardless of benefit – are vaccines ‘serious medical treatment’?

Regardless of its medical benefit, were the parents right to say that only the High Court could resolve a dispute between parents and a local authority? There have sadly been very many cases where care proceedings and complex medical treatment intertwine and the High Court has been asked to intervene.

The most difficult and controversial cases have been where care proceedings were used to bring parents before the court over disputes about medical treatment where the parents are otherwise ‘unimpeachable’. The Court of Appeal did not approve of this. The more usual route in cases of dispute over serious medical treatment, is via the NHS Trust responsible for treating a child applying to invoke the court’s inherent jurisdiction. in such applications, there is no need to discuss threshold criteria or ‘blame’ the parents and the sole criterion is the welfare of the child.

The Court of Appeal acknowledged that some previous cases could be interpreted as denying that the LA had the power to authorise ANY medical treatment. But, if that was the correct interpretation – then those cases got it wrong.

The Court of Appeal then turned to examine how vaccination cases in particular had been dealt with by the courts. It was noted that in a previous case the hearing had lasted two weeks with extensive medical evidence and a judgment of 370 pages which concluded that it was in the best interests of the healthy children to be vaccinated. That decision was appealed and the appeal dismissed. See In Re C (Welfare of Child: Immunisation) [2003] EWCA Civ 1148[2003] 2 FLR 1095) However, further cases continued to hear extensive expert evidence.

The Court of Appeal stated that by the 2010 at the very latest, there has been no evidential basis for suggesting a link between MMR and autism and other vaccines which are routinely given to children have not been subject to the same high profile concerns about their safety.

The Court of Appeal did not think it mattered to call vaccinations ‘medical treatment’ or ‘preventative health care’ – what mattered is whether vaccinations were ‘grave’ and ‘serious’ in the context of the exercise of PR by a local authority. This was soundly rejected:

I cannot agree that the giving of a vaccination is a grave issue (regardless of whether it is described as medical treatment or not). In my judgment it cannot be said that the vaccination of children under the UK public health programme is in itself a ‘grave’ issue in circumstances where there is no contra-indication in relation to the child in question and when the alleged link between MMR and autism has been definitively disproved. 

Cases involving disputes between parents

The route for parents who cannot agree about vaccination is to apply for a Specific Issue Order under section 8 of the Children Act 1989 – see Thorpe LJ in Re C (Immunisations) at paragraph [17] where in 2003 he expressed the view that immunisations were part of a ‘small group of important decisions’ where if those with PR could not agree, it should come before the court. The Court of Appeal wondered if now in 2020 this could still hold good given that all evidence unequivocally supports the recommendation of Public Health England that vaccinations benefit children and the wider society. However, the Court of Appeal declined to offer a definite view about this.

However, the reality is that if parents can’t agree in discussion or more formal mediation, neither has primacy over the other and they have no option but to come to court for resolution.

This is very different to the situation where a care order exists, as in that situation Parliament has given the LA the power to override a parent unless its a decision of such magnitude that it must come before the High Court.

Warning to local authorities

However, the Court of Appeal sounded a note of caution, warning the local authority that it must involve parents in decision making and section 33 CA 1989 was not an invitation to ‘ride rough shod’ over parents. If the parents do not agree with the the LA decision to consent to vaccination, they can make an application to invoke the inherent jurisdiction and apply for an injunction under the Human Rights Act 1998 to prevent vaccination before the matter comes before the court.

The Court of Appeal decision does not in any way diminish the importance of parental views where there is a real issue about what decision will promote a child’s welfare. However, the weight to be given any objection is not decided by how insistently it is made, but according to what substance it has.

The pressure on the family justice system is already serious enough without devoting weeks of High Court time to reinventing the vaccination wheel.

Remote hearings and the impact for family justice

This is a post by Sarah Phillimore. The Nuffield consultation is open until April 28th 2020, so please comment.

At the time of writing – April 17th – the UK is in its 3rd week of ‘lockdown’ in response to the global pandemic and efforts to reduce the spread of COVID 19. Courts have been operating remotely for a number of weeks now and some of the initial problems and panic have been ironed out. However, there are still some worries, in particular how this is impacting on lay clients. Many parents in care proceedings already face serious disadvantages in terms of ready access to technology or even a quiet and safe space in which to sit to engage in a remote hearing.

This is an issue of significance and importance – Tortoise Media organised a digital ‘ThinkIn’ for the Nuffield Family Justice Observatory.

Polly Curtis of Tortoise commented

Under lockdown there has been an 800% increase in court hearings being conducted by telephone or video call. The Nuffield Family Justice Observatory has been asked by the President of the Family Division to conduct a rapid consultation on the use of remote hearings in the family courts to inform future guidance. Join us to share your experiences: What has worked well? Do you have concerns? What improvements could be made?

What has worked well?

My experience is still quite limited; I have done a number of directions hearings where everything was more or less agreed; I haven’t yet cross examined anyone as the contested hearings lined up in my diary have fallen away. But for those hearings where the issues were limited and well known, where there wasn’t a need to put questions to a lay witness or navigate a massive bundle, it seemed to go ok. It was great not to have to travel hours to and from court for a 20 minute hearing, and the platforms I have used – Zoom and Skype for business – appeared to work reasonably well, apart from one complete and inexplicable failure of my microphone (and yes, I HAD unmuted).

Do you have concerns?

Yes. Although I haven’t yet conducted a contested hearing remotely, my experiences so far make me doubtful that its going to be as easy or as straightforward as some make out.

The significant problem in many family cases is going to be the inherent vulnerability of the lay clients. When meeting in person in court, we can talk, I can reassure, I can explain, I can see or be told immediately if my client is getting distressed or needs a break. All of this is gone with remote working. During one hearing I was taking client’s instructions via What’s App while trying to listen to the submissions of my opponents and formulate my own response. Yes, this is what happens in court hearings that are not remote – an important skill as a trial lawyer is being able to deal with client’s scribbled or whispered instructions while trying to follow the arguments of your opponent.

But there was something very draining about the remote experience that made it ten times more exhausting. That particular hearing lasted no more than 2 hours. I felt afterwards as if I had an entire day in court. I don’t yet know if this is because I am new to the experience and finding it stressful or whether a remote hearing does strip away some essential elements of good communication and that this extra effort will remain a feature of such work.

What improvements could be made?

Bizarrely, I thought I would be most concerned about technology and its availability, but my three week immersion in this new world has flagged up other difficulties I had not anticipated. From my experience what I would like to see most urgently is an end to the almost incessant flow of ‘guidance’ or comments about ‘guidance’. I appreciate that everyone is doing their best and this is for some people a way to cope with uncertainty. I also hope its an inevitable product of this brand new and very rapid change to all our circumstances.

But its oppressive, its confusing and instead of making sure that it directs people to consider what is important, I think it risks having the opposite effect – the more people expect ‘guidance’ to give them the answers, the less they tend to think about the case in front of them.

I think we need to keep first principles in mind

  • The child’s welfare is paramount
  • Delay should only be permitted if planned and purposeful BUT
  • Hearings must be fair – and there is often a lot to unpack in that one

I am supported in this analysis by para 24 of the President’s judgment in P – see link below in Further Reading

The decision whether to hold a remote hearing in a contested case involving the welfare of a child is a particularly difficult one for a court to resolve. A range of factors are likely to be in play, each potentially compelling but also potentially at odds with each other. The need to maintain a hearing in order to avoid delay and to resolve issues for a child in order for her life to move forward is likely to be a most powerful consideration in many cases, but it may be at odds with the need for the very resolution of that issue to be undertaken in a thorough, forensically sound, fair, just and proportionate manner. The decision to proceed or not may not turn on the category of case or seriousness of the decision, but upon other factors that are idiosyncratic of the particular case itself, such as the local facilities, the available technology, the personalities and expectations of the key family members and, in these early days, the experience of the judge or magistrates in remote working. It is because no two cases may be the same that the decision on remote hearings has been left to the individual judge in each case, rather than making it the subject of binding national guidance.

There is often tension between all those principles But every family case offers a huge array of different circumstances which need to be weighed and considered. One final hearing of mine was adjourned for a variety of reasons, not all to do with the remoteness of the hearing – but it was clear that remoteness weighed more heavily on considerations about the parent’s need for assistance to understand and participate in the proceedings. While hearings remain remote we need to be focused much more clearly on the impact of this on the lay client and whether they can participate in a meaningful way.

The Guidance from MacDonald J (see further reading below) is detailed and impressive and begins with the reminder from the President of the Family Division that we must not lose sight of the ‘primary purpose’ of the family court – to deal with cases justly. The Guidance offers a particularly pertinent example of a Court of Protection case that the Judge, journalists and lawyers all felt went very well indeed – but the lay person had a very different experience.

It all, in the end, comes down to what we think our courts are for. If the aim is to get the slickest and most efficient system up and running, then remote working offers a lot of advantages. But I hope most would agree that process should not be elevated above the people who must suffer that process.

It will be interesting to see how the Digital Courts develop when (if) we are ever out of lockdown. I can see ways that technology can be used to great effect and one positive at least from all of this is we will have speeded up immensely our willingness to embrace remote working.

Further reading

Advice on mechanics of remote hearings

Government advice on how to join remote hearings

Guidance from MacDonald J – 5th version 26 June 2020

Advocacy Guidance from the Council of the Inns of Court

Remote family hearings – guidance from 15th April 2020

Commentary

Remote hearings: a gulf between lawyers and lay parties? The Transparency Project March 29th 2020

Remote Hearings Guidance Note The Transparency Project June 7th 2020

The Family Court and Covid 19: The Road Ahead Guidance from the President on June 9th 2020.

Case law

P (A Child: Remote Hearing), Re (Rev 2) [2020] EWFC 32 (16 April 2020) 

Re A (Children) (Remote Hearing: Care and Placement Orders) 2020

C (Children : Covid-19: Representation) [2020] EWCA Civ 734 (10 June 2020)

Summary of case law up to end of May 2020 – Child Protection Resource

MUNCIPIO DE MARIANA & ORS v (1) BHP GROUP PLC (FORMERLY BHP BILLITON) (7) BHP GROUP LTD (Second to Sixth Defendants not party to the proceedings) (2020)

[2020] EWHC 928 (TCC)
QBD (TCC) (Judge Eyre QC) 20/04/2020
CIVIL PROCEDURE
ADJOURNMENT : CORONAVIRUS : DISPUTING THE COURT’S JURISDICTION : EXTENSIONS OF TIME : REMOTE ATTENDANCE : TECHNOLOGY
The court gave guidance on the approach to applications for an adjournment and applications for extensions of time due to the Covid-19 pandemic.
The first and seventh defendants applied for an extension of time, due to the effect of the Covid-19 pandemic, for service of evidence in respect of the claimants’ application to stay the proceedings on jurisdictional grounds.

The proceedings arose out of the collapse of a dam in Brazil which had released large quantities of toxic materials and contaminated water. There were over 200,000 claimants and the claims were made under Brazilian law. Other proceedings had been commenced in Brazil and a foundation had been established to provide compensation on a non-litigious basis. An application by the first defendant English company and the seventh defendant Australian company challenging the English court’s jurisdiction, and for the claims to be struck out or stayed, was listed to be heard in June 2020. Both sides had served expert reports with substantial exhibits. The defendants applied to extend time for service of their reply to the claimants’ evidence by five or six weeks because of the practical difficulties caused by the Covid-19 pandemic. If an extension was granted the hearing of the jurisdiction challenge would need to be vacated.

HELD: Approach to applications to adjourn hearings because of Covid-19 – The starting point was the overriding objective with the requirements that: cases were to be dealt with justly; in ways which were proportionate to the amounts involved, the importance of the case and the complexity of the issues; expeditiously and fairly. Regard was also to be had to PD 51 ZA para.4, which required the court to take into account the impact of the Covid-19 pandemic so far as compatible with the proper administration of justice. In the light of authorities since the start of the pandemic, the following principles governed whether a particular hearing should be adjourned if the case could not be heard face-to-face or whether instead there should be a remote hearing, National Bank of Kazakhstan v Bank of New York Mellon, Re Smith Technologies 26 March 2020 and One Blackfriars Ltd (In Liquidation), Re [2020] EWHC 845 (Ch) applied.

(i) Regard was to be had to the importance of the continued administration of justice. Justice delayed was justice denied even when the delay resulted from a response to the prevailing circumstances.

(ii) There was to be a recognition of the extent to which disputes could in fact be resolved fairly by way of remote hearings.

(iii) The courts had to be prepared to hold remote hearings in circumstances where it would have been inconceivable only weeks earlier.

(iv) There was to be rigorous examination of the possibility of a remote hearing, and of the ways in which such a hearing could be achieved consistent with justice, before the court should accept that a just determination could not be achieved in such a hearing.

(v) Whether there could be a fair resolution by way of a remote hearing would be case-specific. A multiplicity of factors would come into play and the issue of whether and to what extent live evidence and cross-examination would be necessary was likely to be important in many cases. There would be cases where the court could not be satisfied that a fair resolution could be achieved by way of a remote hearing.

(see paras 16-17, 24 of judgment).

Approach to applications for extensions of time because of Covid-19 –

(i) The objective if it was achievable was to keep to existing deadlines and where that was not realistically possible to permit the minimum extension of time which was realistically practicable. The prompt administration of justice and compliance with court orders remained of great importance even in circumstances of a pandemic.

(ii) The court could expect legal professionals to make appropriate use of modern technology.

(iii) The court could expect and require from lawyers a degree of readiness to put up with inconveniences; to use imaginative and innovative methods of working; and to acquire the new skills needed for the effective use of remote technology.

(iv) The approach required of lawyers could also be expected from professional expert witnesses. However, rather different considerations were likely to apply where the persons who would need to take particular measures were private individuals falling outside those categories.

(v) The court should be willing to accept less polished evidence and other material.

(vii) However, the court had to take account of the realities of the position and while requiring lawyers and other professionals to press forward care had to be taken to avoid requiring compliance with deadlines which were not achievable even with proper effort.

(viii) The court had to have regard to the consequences of the restrictions on movement and the steps by way of working from home which had been taken to address the pandemic.

(ix) Those factors were to be considered against the general position that an extension of time which required the loss of a trial date had much more significance and would be granted much less readily than an extension of time which did not have that effect.

(para.32).

Application to the facts – The defendants had shown that even when all proper allowance was made for the use of technology and extra efforts, the exercise of preparing the reply evidence would take significantly longer than was provided for in the timetable. Justice required that the defendants be given an extension of time of five to six weeks. The jurisdiction challenge hearing would be relisted for July 2020 (paras 42, 48).

Application granted
Counsel:
For the claimants: Nicholas Harrison, Jonathan McDonagh
For the defendants: Charles Gibson QC, Nicholas Sloboda, Veena Srirangam

Solicitors:
For the claimants: SPG Law
For the defendants: Slaughter and May
LTL 21/4/2020 : [2020] 4 WLUK 180
Official – 17 pages
AC5011101

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

(c) any legal submissions

(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.

Further Reading

(1) Model Order

IN THE HIGH COURT OF JUSTICE Case Number:
FAMILY DIVISION
[PRINCIPAL REGISTRY]

BEFORE [JUDGE] IN PRIVATE

IN THE MATTER OF THE COURT’S INHERENT JURISDICTION

BETWEEN

[ ]

and

[ ]

REPORTING RESTRICTION ORDER

IMPORTANT

If you disobey this order you may be found guilty of contempt of court and may be sent to prison or be fined or have your assets seized. You should read the order carefully and are advised to consult a solicitor as soon as possible. You have the right to ask the Court to vary or discharge the order.

EXPLANATION

  1. On [date] the Court considered an application for a reporting restriction order.
  2. The following persons and/or organisations were represented before the Court:[describe parties and their advocates]
  3. The Court read the following documents: [list the documents]and/orThe Court directed the [Applicant/Claimant] to file a statement no later than [date] setting out the information presented to the court at the hearing.and/orThe Court directed that copies of the attached Explanatory Note and [list any other documents] be made available by the [Applicant/Claimant] to any person affected by this Order.
  4. [In a case where an undertaking in damages is required by the Court:The Applicant gave an undertaking that if the Court later finds that this Order was obtained as a result of any deliberate or careless misrepresentation by the Applicant, and that this has caused loss to any person served with the Order, and that that person should be compensated, the Applicant will comply with any order the Court may make.]
  5. In the case of an order made without notice:This order was made without notice to those affected by it, the Court having considered section 12(2) Human Rights Act 1998 and being satisfied (i) that the [Applicant/Claimant] has taken all practicable steps to notify persons affected and/or (ii) that there are compelling reasons for notice not being given, namely: [set out the Court’s reasons for making the order without notice]
  6. [In the case of an application by a local authority:The Court granted permission to the Applicant to apply for the exercise of the Court’s inherent jurisdiction]

ORDER

  1. Duration Subject to any different order made in the meantime, this order shall have effect[in the case of an adult] during the lifetime of the [Defendant], whose details are set out in Schedule 1 to this order.[in the case of a child] until [date], the 18th birthday of the child whose details are set out in Schedule 1 to this order (’the Child’).
  2. Who is bound This order binds all persons and all companies (whether acting by their directors, employees or agents or in any other way) who know that the order has been made.
  3. Publishing restrictionsThis order prohibits the publishing or broadcasting in any newspaper, magazine, public computer network, internet website, sound or television broadcast or cable or satellite programme service of:
    1. the name and address of
      1. the [Defendant/Child];
      2. [in the case of a child] the Child’s parents (’the parents’), whose details are set out in Schedule 2 to this order;
      3. any individual having day-to-day care of or medical responsibility for the [Defendant/Child] (’a carer’), whose details are set out in Schedule 3 to this Order;
      4. any residential home or hospital, or other establishment in which the [Defendant/Child] is residing or being treated (’an establishment’);
    2. any picture being or including a picture of either the [Defendant/Child], a carer or an establishment;
    3. any other particulars or information relating to the [Defendant/Child];IF, BUT ONLY IF, such publication is likely to lead to the identification of the [Defendant/Child] as being [set out the feature of the situation which has led to the granting of the order].
  4. No publication of the text or a summary of this order (except for service of the order under paragraph 7 below) shall include any of the matters referred to in paragraph 3 above.
  5. Restriction on seeking information This Order prohibits any person from seeking any information relating to the [Defendant/Child] [or the parents] or a carer from any of the following:
    1. the [Defendant/Child];
    2. [the parents];
    3. a carer;
    4. the staff or residents of an establishment.]
  6. What is not restricted by this Order Nothing in this Order shall prevent any person from:
    1. publishing information relating to any part of a hearing in a court in England and Wales (including a coroner’s court) in which the court was sitting in public and did not itself make any order restricting publication.
    2. seeking or publishing information which is not restricted by Paragraph 3 above.
    3. inquiring whether a person or place falls within paragraph 3(a) above.
    4. seeking information relating to the [Defendant/Child] while acting in a manner authorised by statute or by any court in England and Wales.
    5. seeking information from the responsible solicitor acting for any of the parties or any appointed press officer, whose details are set out in Schedule 4 to this order.
    6. seeking or receiving information from anyone who before the making of this order had previously approached that person with the purpose of volunteering information (but this paragraph will not make lawful the provision or receipt of private information which would otherwise be unlawful).
    7. publishing information which before the service on that person of this order was already in the public domain in England and Wales as a result of publication by another person in any newspaper, magazine, sound or television broadcast or cable or satellite programme service, or on the internet website of a media organisation operating within England and Wales.
  7. Service Copies of this Order endorsed with a notice warning of the consequences of disobedience shall be served by the [Applicant/Claimant] (and may be served by any other party to the proceedings)
    1. by service on such newspaper and sound or television broadcasting or cable or satellite or programme services as they think fit, by fax or first class post addressed to the editor (in the case of a newspaper) or senior news editor (in the case of a broadcasting or cable or satellite programme service) or website administrator (in the case of an internet website) and/or to their respective legal departments; and/or
    2. on such other persons as the parties may think fit, by personal service.
  8. Further applications about this Order The parties and any person affected by any of the restrictions in paragraphs 3-5 above may make application to vary or discharge it to a Judge of the High Court on not less than [48 hours] notice to the parties.

SCHEDULE 1

[The [Defendant/Child]’s Full Name:
Born:
Address:
]

or

[Information enabling those affected by order to identify the Defendant/Child]

SCHEDULE 2

[Similar details of parents]

SCHEDULE 3

[Similar details of carers or other persons protected]

SCHEDULE 4

[Contact details of responsible solicitor and/or press officer]

Date of Order: [ ]

(2) Example of Explanatory Note

NHS TRUST X v AB

Application for a Reporting Restriction Order

DRAFT EXPLANATORY NOTE

1 AB is a child who suffers from a degenerative disease. An application has been made by the NHS Hospital Trust responsible for his care for the Court’s approval of the withdrawal of ventilation. This course is opposed by AB’s family.

2 On [date] the application will be heard by the President of the Family Division, who will give judgment in open court.

3 A Reporting Restriction Order has been [made/applied for] to protect AB’s right to confidentiality in respect of his medical treatment. This does not restrict publication of information or discussion about the treatment of patients with similar conditions, provided that such publication is not likely to lead to the identification of AB, those caring for him, the NHS Trust concerned or the establishment at which he is being cared for.

Citations: [2005] 2 FLR 111

SCHEDULE 1

[The [Defendant/Child]’s Full Name:
Born:
Address:
]

or

[Information enabling those affected by order to identify the Defendant/Child]

SCHEDULE 2

[Similar details of parents]

SCHEDULE 3

[Similar details of carers or other persons protected]

SCHEDULE 4

[Contact details of responsible solicitor and/or press officer]

Date of Order: [ ]

(2) Example of Explanatory Note

NHS TRUST X v AB

Application for a Reporting Restriction Order

DRAFT EXPLANATORY NOTE

1 AB is a child who suffers from a degenerative disease. An application has been made by the NHS Hospital Trust responsible for his care for the Court’s approval of the withdrawal of ventilation. This course is opposed by AB’s family.

2 On [date] the application will be heard by the President of the Family Division, who will give judgment in open court.

3 A Reporting Restriction Order has been [made/applied for] to protect AB’s right to confidentiality in respect of his medical treatment. This does not restrict publication of information or discussion about the treatment of patients with similar conditions, provided that such publication is not likely to lead to the identification of AB, those caring for him, the NHS Trust concerned or the establishment at which he is being cared for.

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

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.

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.

Further reading

Alleged perpetrators of abuse as litigants in person in private family law – research from the MOJ from 2017 which explains why we are now in the current mess after legal aid was withdrawn from such cases in 2015.

Domestic Abuse Bill 2020: Over-arching fact sheet

Cross examination in the family court fact sheet

Safe not Sorry – Woman’s Aid report from 2016 which relies upon the bogus ‘1% contact refused’ statistic.

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

Child in need or ‘looked after child’. Why does it matter?

This is a post by Sarah Phillimore.

Teasing out the various issues arising under section 17 and section 20 of the Children Act when it comes to ‘providing accommodation’ and the consequences that flow from that, appears to be yet another example of complicated and confusing statutory provisions which put enormous obstacles in the way of parents being able to understand the process. We must either simplify our laws or increase provision of legal aid. 

What happens to children under 16 who need help from the State with somewhere to live?

Mrs Justice Black SA v KCC [2010] EWHC 848 (Admin)

“There are various provisions of the Children Act 1989 apart from s 17(6) which deal with the provision of accommodation by a local authority. Although this is not the first time I have had to consider this aspect of the Act, I continue to have difficulty in understanding how the various provisions fit together, how it was envisaged that the scheme would work in practice and how it was thought that it would enable local authorities and others to ascertain, relatively simply, whether a child is looked after or not…”

The distinction between ‘in need’ and ‘looked after’

A child can be a ‘child in need’ and get help and services under section 17 of the Children Act 1989. Or a child can be a ‘looked after’ child and get help and services under section 22 of the Act.

The distinction between these two is significant. A ‘looked after’ child gets more help, including a duty on the LA to consider offering support even when she is older than 18. A ‘looked after’ child will also experience more intervention from the LA, for example the statute provides that frequent reviews are required.

The Children (Leaving Care) Act 2000 creates new categories of young people entitled to support.

  • Eligible child – aged 16 or 17 and are currently looked after, either on a care order or accommodated, who has been looked after for a period or periods of 13 weeks since their 14th birthday (this total should include at least one spell of over 4 weeks, but does not include respite). This category defines those who will go on to become Relevant and Former Relevant young people when they cease to be looked after.
  • Relevant child – Aged 16 or 17 (not yet 18) and have left care, having previously been in the category of Eligible child.

There is a duty to financially support them up to the age of 18. The allowances paid to them should not fall below the level of Income Support or Income Based Job Seekers Allowance.

There is a further category of ‘Former Relevant child’ , being those aged 18 to 25 and who have
left care having previously been Eligible or Relevant, or both. The LA is under a duty to consider the need to financially support them.

A ‘looked after’ child is defined at section 22 of the Children Act 1989 as a child who is under a care order OR IF the accommodation provided is by the LA ‘in the exercise of its functions’

‘Functions’ exclude anything done under section 17, 23B and 24B of the Children Act 1989.

Accommodation is only ‘accommodation’ if it is provided for a continuous period of more than 24 hours.

So what does this mean?

Section 17 imposes a general duty on the LA to safeguard and promote welfare of children in their area. This may include providing accommodation.

Section 23B relates to 16-17 year olds and section 24B relates to those who are at least 16.

Therefore if your accommodation is provided under section 17 you are NOT a ‘looked after’ child. We must then look to sections 20 and 23 of the Children Act 1989 to understand what are the relevant ‘functions’ which decide whether or not a child is ‘looked after’.

Section 20(4) is ‘permissive’ . It does not impose a duty on a local authority to accommodate a child but says that they can do so if they think it would promote the child’s welfare and those with PR consent.

Section 20(1) however is mandatory – so a local authority MUST provide accommodation to a child if there is no one who has parental responsibility for him, or no one who can exercise it.

Section 23 is also mandatory and tells the LA that when they are looking after a child they must provided accommodation and other services. Section 23(2) sets out that accommodation can be provided by placing the child with family or any other suitable person. These people will be considered foster carers (so must be assessed and found suitable to meet regulations around standard of foster care) UNLESS that person is the child’s parent or has PR for the child or a Child Arrangements Order.

Further, section 23(6) sets out the LA ‘looking after a child shall make arrangements to enable him to live with’ a parent or person with PR, or a relative, friend or other person connected with him. The LA must also try to find accommodation near to his home and with other siblings (section 23 (7)).

The drafting of this section, as Mrs Justice Black recognises, is confusing and seems to set up different routes into ‘providing accommodation’.

It’s not the label that matters, its the facts and the legal consequences.

R (on the application of M) v London Borough of Hammersmith and Fulham [2008] UKHL 13 made it clear that if the LA claim to be acting under section 17, a child will still be a looked after child if the circumstances are such that the LA should have gone down the section 20 route.

Difficulty has arisen when a child goes to live with a relative and the LA claim that this is a ‘private’ arrangement and therefore not one that should be described as the LA ‘providing’ accommodation. The court is willing to accept that there may be some cases where a LA could ‘side step’ their duty to accommodate by helping to set up a private fostering arrangement.

Private fostering arrangements are dealt with in section 66 of the CA and cover children who are under 16 and cared for in their own home by someone other than a parent, a person with parental responsibility or a relative.  A ‘relative’ is defined under section 105 of the Children Act 1989 as a grandparent, brother, sister, uncle or aunt (whether by blood or marriage) or step-parent.

Has the LA taken a ‘major role’ in making arrangements for the child to be accommodated?

It is a question of fact in every particular case. Where a LA takes a ‘major role’ in making arrangements for a child to be fostered, it is more likely to be considered to be exercising its duties under sections 20 and 23, no matter what it claims is the label to be attached to its actions.

Helpful issues to analyse are likely to be:

  • is the LA attempting to regulate the terms of the placement? for e.g. having a view about the child’s school or who has contact with the child?
  • What is the LA saying about providing financial help for the child? A true private arrangement will be between the parents and the proposed carers who must understand that the parents will be providing financial support.

Does it then matter if the LA argues section 23(2) or 23(6)?

The court said ‘no’ in SA v KCC [2010] and set out a simple approach to the statute. If the child falls within section 20(1) – there is no one with PR or no one who can exercise it – then the LA is providing accommodation for the child regardless of whether or not it finds a home with a friend or relative and regardless of whether or not the LA chooses to accommodate a child under section 23(2) or 23(6).

The LA in that case had tried to argue that whenever a child goes to live with a relative under section 23(6) then such children are not ‘provided accommodation’ unless there is care order in place. The court rejected this ‘rigid position’ as being potentially disadvantageous to the child and ignores the ‘enormous variation that there is in the circumstances of children, and their parents and carers’.






What’s in a name? The right of parents to name their child – when can the state interfere?

I was reminded of the case of C (Children) [2016] EWCA Civ 374 at a recent court hearing where the issue arose about the local authority’s duty to register the birth of a child who is subject to a care order. Hopefully that matter will be subject of some further guidance – my argument being that a failure by a parent to register a birth is an abnegation of parental responsibility, not an exercise of it and therefore the local authority ought to be allowed to register after the required 42 days without needing the court’s permission. 

However the issue of what name a child should be registered with is of much greater significance and It is clear that any argument between parent and local authority must be subject to over sight by the court. But what gives the local authority the right to have an opinion in the first place? To answer this question requires an examination of what happened in C Children.  

How far can the state interfere with a parents wish to register (or not) the birth and name of their baby?

The issue of registering a birth is interesting in the context of care proceedings as there appears to be a view in some quarters that registering a birth makes your baby the ‘property of the state’ and refusing to register means the local authority cannot issue care proceedings. This view has no substance, but of course that doesn’t prevent people from spreading it and believing it.

Registering the birth: the operation of the Birth and Deaths Registration Act 1953

The purpose of the BDRA 1953 is to create a document of public record evidencing all births and deaths in England and Wales. It determines what information is needed to register a child’s brith, who may provide that information and when they must do it.  There is no absolute requirement to register a ‘name’ at the same time as the birth, but provision is made in section 13 BDRA 1953 for the registration of a forename following a delay of up to twelve months or for the alteration of a name during the same period of time:

Section 1(2) BDRA 1953 sets out who is qualified to provide the necessary information to the Registrar; these people are known as “qualified informants”: They are the father and mother, the occupier of the house where the child was born, any person present at the birth or any person having charge of the child.  These ‘qualified informants’ have 42 days from the date of birth to register it

Section 4 BDRA 1953 provides that where, after the expiration of forty-two days, ‘the birth of the child has, owing to the default of the persons required to give information concerning it, not been registered…’, the Registrar can require any qualified informant to attend at a place appointed by the Registrar to give the required information and to sign the register in the presence of the registrar.

So it seems pretty clear from this that the act of registering a birth is an exercise of parental responsibility but is not restricted to actual parents; the focus here is on the proper registration of the birth so that the child can be recognised and identified in the society into which he is born. It is an administrative requirement, not an illustration of something special and particular for parents.

Naming your child – an issue of fundamental significance

if registering a child’s birth is rightly described as a mere administrative act, it is clear that the choice of name for a child is an act of a very different nature and quality and is likely to be of far more emotional importance to most parents.  This exercise of parental responsibility should only be interfered with in exceptional circumstances. As was recognised in C Children at para 40:

One of the first questions asked by friends and relatives following the birth of a child is ‘what is the baby’s name?’ It may be thought that any individual who has had the happy experience of debating with his or her partner possible forenames for their unborn child would be astonished at the proposition that the choice of the name of their child could be regarded as other than their right as the child’s parents, and their first act of parental responsibility. The name given to a child ordinarily evolves over the months of the pregnancy through a bundle of cultural, familial and taste influences. The forename finally chosen forms a critical part of his or her evolving identity….If a baby cannot be brought up by his or her parents, often the forename given to him or her by their mother is the only lasting gift they have from her. It may be the first, and only, act of parental responsibility by his or her mother. It is likely, therefore, to be of infinite value to that child as part of his or her identity….The naming of a child is not however merely a right or privilege, but also a responsibility; people, and particularly children, are capable of great unkindness and often are not accepting of the unusual or bizarre. It does not need expert evidence or academic research to appreciate that a name which attracts ridicule, teasing, bullying or embarrassment will have a deleterious effect on a child’s self-esteem and self-confidence with potentially long term consequences for him or her. The burden of such a name can also cause that child to feel considerable resentment towards the parent who inflicted it upon him or her….

 

Facts of C Children [2016]

So what happened in this case to justify the court refusing to allow a mother to name her children?  This case involved a mother with serious mental health issues. She had a long standing diagnosis of a psychotic disorder and of schizophrenia of an “undifferentiated type with an underlying personality disorder”. She did not accept the diagnosis and thus would not accept any treatment but she was found to have capacity to give instructions in the care proceedings.

Her three elder children had been removed from her care. She then had twin children who were subject to ICOs shortly after birth. Their father was not known; the children were conceived after the mother was raped. She told the midwife she wanted to call the twins ‘Preacher’ and ‘Cyanide’. The local authority tried to persuade her against this but failed – the mother argued that it was a ‘lovely, pretty name’ and that because Hitler killed himself with cyanide, this was a positive connotation.

After some weeks of attempts to change the mother’s mind, the local authority first asked the court to exercise its inherent jurisdiction under s.100 Children Act 1989 to prevent the children being so named but the court did not agree that this was the right route. However, as registering a birth and naming a child were ‘aspects of parental responsibility’, they were actions of a parent which could be limited by the local authority under s.33(3)(b) Children Act 1989. The court then declared that the local authority were allowed to prevent the mother from registering the children with those names.

The mother appealed on the basis that that the judge was wrong in concluding that the naming of the child and the registration of the child’s birth were each an exercise of parental responsibility and that the judge erred in concluding that a local authority has power under section 33(3)(b) CA 1989 to determine that the mother should not register her children’s births with her chosen names. Therefore, it was her human right to choose their names and register them without the interference of the local authority.

The Court of Appeal rejected the mother’s grounds and agreed that the registration of the births and naming of children were acts of parental responsibility, but also that a court could, under its inherent jurisdiction intervene in these circumstances and that the appropriate statutory route was therefore s.100 Children Act 1989.

The first court had not been happy to consider use of the inherent jurisdiction because it did not consider that the test of significant harm was met but King LJ in the Court of Appeal held that some names – such as Cyanide – were so awful that they gave rise to reasonable cause to believe that any child given that name was likely to suffer significant emotional harm. The Court did not have the same objections to ‘Preacher’ but did not think it right for one child to be named by the mother and the other not, so agreed that this name should not be registered either.

Happily in October 2015 the twins moved permanently to live with the foster family caring for their two eldest half siblings live, who chose names that they would like their brother and sister to be called

The limits to what a parent may do to a child under heading of “parental responsibility”.

This case is a useful illustration of the fact that PR while very important and worthy of protection, is not a green light for a parent to do whatever they want.  The Children Act defines “parental responsibility” as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.”

In Re H-B (Contact) [2015] EWCA Civ 389, the then President of the Family Division, Sir James Munby P, quoted with approval the judgment of McFarlane LJ in Re W (Direct Contact) [2012] EWCA Civ 999 at para 72: i:

I wish to emphasise this, parental responsibility is more, much more than a mere lawyer’s concept or a principle of law. It is a fundamentally important reflection of the realities of the human condition, of the very essence of the relationship of parent and child. Parental responsibility exists outside and anterior to the law. Parental responsibility involves duties owed by the parent not just to the court. First and foremost, and even more importantly, parental responsibility involves duties owed by each parent to the child.

The foundation of the exercise of PR is therefore those acts which contribute to or secure the welfare of the child. Refusing to register your child’s birth or giving a child a name that many others are likely to find offensive or ludicrous is an abnegation of PR, not an exercise of it and parents have no ‘right’ to do harm to their child.

 

 






Communicating with the Home Office in family proceedings.

COMMUNICATING WITH UK VISAS AND IMMIGRATION (UKVI)
IN FAMILY PROCEEDINGS

Protocol agreed between the President of the Family Division and the Home Office issued on 16 May 2018

1 This Protocol enables the family courts (the Family Division of the High Court of Justice and the Family Court) to communicate with UK VISAS AND IMMIGRATION (UKVI), the relevant division of the Home Office, to obtain immigration and visa information for use in family court proceedings. Although it replaces and supersedes the previous guidance issued in 2002, 2004, 2006, 2010 and 2014, in particular to reflect new UKVI processes and contact details, it does not alter the nature or purpose of the Protocol.

2 There are three parts of the process:

(1) HMCTS form EX660 (rev 04/18), a copy of which is annexed to this Protocol, must be completed by the parties and approved by the judge.

(a) The EX660 must be typed, not handwritten.
(b) The EX660 must be completed in full, specifying the details of the relevant family members and their relationship to the child(ren). Details of both mother and father/adoptive parents if known should be provided, whether or not they are involved in the proceedings, as this enables UKVI to trace the child(ren)’s records.
(c) The EX660 and the order must specify the questions the court wishes to be answered by UKVI.
(d) The EX660 must contain the name and contact details of someone who has agreed and is able to provide further information if needed.
(e) The EX660 must clearly state the time by which the information is required.

Failure to do this may cause delay in the time it takes UKVI to process the request.

(2) An order in the relevant form, a copy of which is annexed to this Protocol, must be drawn up, approved by the judge and sealed by the court.

(a) The order must clearly state the time by which the information is required.
(b) The order must specify any additional information or documents, such as a synopsis, which it wishes UKVI to have and set out in the order that the leave of the court to make disclosure to UKVI has been given. (Note that it may be a contempt of court to disclose this information otherwise.)

(3) The UKVI SVEC pro-forma must be completed by the court staff utilising the information in the EX660 and the order.

(a) All relevant fields in the SVEC pro-forma must be completed:
i. Section A – All fields to be completed if known
ii. Section B – Enquiry Type – Select Standard
iii. Section C – Select Subject 1 and complete all fields.
iv. Section D – Enter “Y” in “Other ” field only.
v. Section E – Enter ” Please refer to court order and EX660″.
vi. For more than one subject, select subject 2 and so on, completing steps C-E for each one.
(b) In Section B there are two fields, “Court date” and “required date”, which must be completed. In both fields the date the information is required should be entered, not the court date. These fields generate the target date on UKVI systems and, as the information ordered by the court will be required before the date of the court hearing, this will ensure that the information is provided in time.

3 The EX660 and the order must contain sufficient information to enable UKVI to understand the nature of the case, to identify whether the case involves an adoption, and to identify whether the immigration issues raised relate to an asylum or a non- asylum application.
4 In order to comply with the agreed four (4) week period for UKVI to provide a response to the court, the sealed order should be available to be sent by the court staff to UKVI on the same day that the order is made. Where that is not possible, the court, when stating the required date of receipt by the court of the information requested, must allow any additional time necessary for the preparation, sealing and sending of the order. This is to ensure that UKVI has four (4) weeks to provide a response from the time it receives the order.
5 The sealed order, completed EX660 and SVEC pro-forma should be sent immediately by the court to ICESSVECWorkflow@homeoffice.gsi.gov.uk including EEREQUEST on the subject line of the email. The request for information will be rejected by UKVI if either the sealed order or the SVEC pro-forma is not provided.
6 Where the court wishes to progress a case that may be delayed, it may send an email to SVECManagement@homeoffice.gsi.gov.uk
7 The UKVI official will be personally responsible for either:
(i) answering the query themselves, by retrieving the file and preparing a statement for the court; or
(ii) forwarding to a caseworker or relevant official with carriage of the particular file.
8 UKVI will ensure that their information is received by the court in time, as instructed by the judge or court making the request.

James Munby, President of the Family Division






Multi Agency Response to children living with domestic abuse

Regular contributor @DVHurts writes about the recent report investigating the multi agency response to children living with domestic abuse. Some good practice is noted but also criticism of practices that do not keep children safe, such as written agreements that do not focus on the perpetrator as the source of the abuse and therefore the risk. 

I am highlighting a recent joint inspection report by OFSTEAD, HMICFRS, Care Quality Commission and HM Inspectors of Probation, into the multi agency response to children living with domestic abuse. You can read the whole report here.

This report is about the second joint targeted area inspection programme, which
began in September 2016 and which examined ‘the multi-agency response to
children living with domestic abuse’. The findings in this report consider the extent to
which, in the six local authorities inspected, children’s social care, health
professionals, the police and probation officers were effective in safeguarding
children who live with domestic abuse. The report calls for a national public service
initiative to raise awareness of domestic abuse and violence. It also calls for a
greater focus on perpetrators and better strategies for the prevention of domestic
abuse.

It raises the question whether a public health campaign similar to drink driving or drug awareness should be rolled out considering the enormous human and financial cost of domestic violence:

There needs to be a public service message aimed at reducing the prevalence of
domestic abuse as part of a long-term strategy. The focus of this public service
message needs to be on those perpetrators who have offended or might offend, and
to communicate a better understanding of the behaviour and attitudes of those
perpetrating abuse.

Once again firefighting by services, rather than prevention is highlighted:

Work with families that we saw on inspection was often in reaction to
individual crises. Agencies can be overwhelmed by the frequency of
serious incidents, particularly higher risk ones. However, keeping children
safe over time needs long-term solutions.

There was criticism on the concentration on the victim, rather than the perpetrator by services:

A pattern emerged that suggests agencies focus on the victim as the only solution.
In the worst cases, agencies placed an inappropriate attribution of responsibility on
the mother to protect her children. The end of an abusive relationship was
considered to reduce the risk to children, when in fact research tells us that
separation can escalate risk.
Most agencies did not focus on the perpetrator of the abuse enough. Instead, they
focused on removing the family from the perpetrator, leaving them to move on to
another family and, potentially, a repeated pattern of abuse.

On a more positive note, the inspectors highlighted several areas of good practice , including midwifery, in particular staff who are not frightened to ask the awkward questions:

In Hounslow, for example, inspectors praised the ‘One Stop Shop’ service
for parents who are subject to domestic abuse. The service is open one
morning a week. Parents can access a range of services, advice and
support from various professionals including legal advice, support from an
independent domestic violence adviser (IDVA), children’s social care, the
police, housing, substance misuse support, a refuge worker and an
independent sexual violence adviser. Inspectors noted that:
‘parents are gaining an understanding of the impact of living with
domestic abuse, leading to their being better able to meet the needs of
their children and keeping them safe’.

On the other hand there was criticism of practice that was highly unlikely to keep children safe:

Some of the thinking and practice we saw with victims in contexts of coercive
control were clearly inappropriate. This included the use of written agreements
that placed responsibility for managing the risk to children with the victim.
Written agreements are similar to written contracts, where social workers and
parents agree a set of terms that the parents sign. The terms may include
things like, the victim will not continue a relationship with her abusive partner,
she will not allow him into the house, she will not be in contact with him, and
so on.

The use of written agreements in two of the six local authorities was
widespread. However, we saw no evidence that they are effective. Given that
the focus of written agreements is often not the perpetrator who is the source
of the abuse and therefore the risk, it is unsurprising that they are ineffective.

Then something that a number of woman will relate to, and is often the subject of comments on this blog( not just from me):

 

Some of the women we spoke to in our focus groups described how their abusers used their distress as evidence that they were unstable. Often the women believed they were regarded as having mental health conditions or of being emotionally incapable of caring for their children. In one case, this resulted in a mother being evicted from her home and her partner being given sole custody of her children, whom she did not see for several months. Eventually her abuser, who had a severe alcohol addiction, was evicted and custody returned to the mother

Untangling this web and being consistent in identifying who needs to be held
responsible, and for what, will always be challenges for professionals. We found
instances of language being used that incorrectly held victims responsible for
the risk of domestic abuse. For example, we saw reports that described an
abusive situation as a ‘lifestyle choice’ and reports stating that victims had
learnt to ‘make better relationship choices’. We also found instances of
the multi-agency response to children living with domestic abuse
inappropriate practice, including a police log that had been updated to state
that a safeguarding visit would not be completed because both parties were ‘as
bad as one another’.

A lack of focus on perpetrators can lead to a short-term view of risks. We saw examples of swift action being taken to secure the immediate safety of the
victim and children, without any action being taken to address the root causes
of the perpetrator’s behaviour. In temporarily resolving the immediate incident,professionals can lose sight of the greater risks posed in future.

One survivor of domestic abuse told us:
‘I called the police on him multiple times and they just kind of patted him
on the back and said ‘calm down son’. And I’m like, ‘he’s just thrown me
down the goddamn stairs’.

It is a comprehensive, readable report and has been reported on elsewhere: http://www.communitycare.co.uk/2017/09/21/written-agreements-still-common-part-child-protection-practice/

http://www.telegraph.co.uk/education/2017/09/19/domestic-abuse-victims-ignored-police-officers-see-lifestyle/Mul