Tag Archives: Family Justice Council

Time for Climate Change in the Family Justice System

The Family Justice Council held its annual Bridget Lindley Memorial Lecture and conference in Bristol on April 6th 2022. Helen Adam gave the keynote address. She is a mediator and Chair of the Family Solutions Working Group who published in October 2020 ‘What about Me? Reframing Support for Families following Parental Separation, capturing a range of interventions for separating parents in one coherent document, in recognition that many cases would be better served outside the court arena. Helen expanded on that theme in her presentation – ‘Time for Climate Change in the Family Justice System’.

She set out her vision for a more humane system that supports families. She recognised that for most, ‘conscious uncoupling’ is unrealistic and the law can’t make people discard emotions. Helen drew a comparison between the Family Justice System and the climate change movement, where there were similar tensions between long established systems and a growing body of evidence that challenges these systems. The message is simple – we cannot go on as we are – but it is also unwelcome as changes will be hard and cost money. But evidence is real and growing that the adversarial system is harmful and is has become impossible to ignore

The Ministry of Justice Risk of Harm Report in June 2020 found that adversarial process often worsened conflict between parents and had damaging impacts on victims of abuse and children. Under conditions of extreme stress even ordinarily robust people can project intense emotions and feel the the other side to be malicious, even dangerous. Family separation is always stressful for children but what drives long term negative impacts is the level of conflict witnessed before, during and after. Reducing parenting conflict is associated with long term positive outcomes.  

Ultimately this is harmful to all society and we need a different, gentler, more humane approach. But the problem seems too huge and difficult to overcome and we end up in state of depressed helplessness. Helen identified possible solutions

  • political support that crosses party lines and co-ordination.
  • public education programme to correct wrong language and wrong attitudes which are outdated.
  • authoritative website – a go to place with clear information for parents and children.
  • Resourcing ‘touchpoints’ – GPs, schools – to provide information and signposting about separation 
  • direct support for children – voice of child is key component, but giving a child a ‘right’ to be heard doesn’t help if it can’t be exercised.
  • Mediation – but this needs triaging as some cases involving abuse just aren’t suitable.

Helen considers that a real benefit of mediation is in allowing a person to explain their situation, gather information about options and have an opportunity to ‘reframe’ family separation and see though the lens of the future. There are many resources out there, such as the Separated Parents Information Plan, but we need a national body of such programmes that meet high standards.

Lawyers have vital role to play in a ‘precourt’ space but parental separation is not primarily a legal issue, as it encompasses issues of safety, emotional states, child consultation, parenting and financial considerations. Parents need models that are supportive and problem solving and judges need training about issues that go beyond law. Without co-ordination what we have currently is just a ‘hotch potch’. But no change can be brought into effect without political intervention.

Language is critical part of any reframing. Helen queried the use of ‘Family Justice System’ – If that is what is said on the tin, that is what people expect, to play out rights and wrongs, to ‘win’ or to exact retribution. David Norgrove said our system is about ‘least worst outcomes’. If we renamed the FJS as ‘least worst outcome system’ would so many people want to go through it? If we don’t want families to go to war, we need to offer them something else. 

Family law is completely different to all other forms of law which is retrospective, correcting past wrongs. We should be forward looking and wanting best outcomes, not just one parent’s concept of justice. Kate Stanley explained that where a system exists with a power dynamic, everyone embraces the language of the most powerful. Change has to come from the top – judges, magistrates and lawyers. We need the paradigm shift that the climate change movement has seen. We are 30 years on from the Children Act. Are we leaving green footprint in lives of families we work with? How is our work impacting families?

Then Ellen Lefley of JUSTICE spoke about improving access to justice for Separting/ed Parents – the full report is due out in July 2022. Access to justice needs understanding as broad concept, about just procedures and just outcomes. There are many barriers to access to justice – institutional, physical, mental, financial. For private family law, its not about increasing access to courts but to the most appropriate resources to resolve problems. The financial vulnerabilities of parents in such cases often means they can’t pay for more creative solutions. We have to ask – what is going on? What intervention is most suitable? How will they access it? Other jurisdictions show that the family court can be at forefront of initial non adversarial triage system which can have encouraging outcomes  – less delay, people weren’t trying and failing. However, high conflict situations were better off going straight to court. This triage resulted in higher settlements and lower rates of return to court.

Then we heard about recent research regarding ‘Profile of parents within the Family Court’ from Dr Linda Cusworth and Jude Eyre, Associate Director of the Nuffield Family Justice Observatory. The research indicated the heightened vulnerability of adults in private law proceedings in the year preceding the court action, i.e. it was not going to court that initiated the problems. Parents in private law proceedings had higher rates of mental health distress, including anxiety and depression when compared to the general population. There were higher rates of self harm and exposure to domestic abuse as either victim or perpetrator.

What does this mean? And what can we do next? The research confirms domestic abuse is a mainstream not minority issue for the FJS. We need to think of the ‘mental model’ of the person for whom we are designing systems. whatever we do, in or out of court, these circumstances of vulnerability are present and real. All services need to be alive and actively screening and thinking about routes though. If parents are vulnerable rather than vexed, how do we engage to minimise anxiety? How can we bring learning about power dynamics into the court hearing? Can we address information gaps for litigants? How can we widen range of services the court can signpost to? Much lies beyond court and legal responsibilities, we need to look outwards to local safeguarding partnerships, clinical commissioning groups and third sector with rich experience. 

We then heard about the experiences of parents and children in the FJS. One parent had benefitted from mediation but another could not, because of safety issues. She made a very strong point that she and her children needed the protection of the family court, which had ‘saved her life’. The voices of children have been gathered together ‘In Our Shoes’ –  contact [email protected] to get free copy, the President confirming that this should be compulsory reading for everyone in the system. 

Some comments

It’s impossible to disagree with anything that was said by the speakers. The adversarial system is clearly the last place any stressed and anxious parents need to be. Cases that drag on for years – as many do – are clearly going to cause children life long emotional damage. We can all see how easily and quickly situations become polarised and how the children suffer the most when caught in the middle.

All the speakers appeared to have arrived at the same solution – we must identify better solutions for families than simply funnelling them through an adversarial system which appears to achieve little and does it very slowly. But equally, all noted that the barriers to such triage are significant. To be blunt, there is often very little on offer or it requires significant financial resources to obtain. The money wasted on a bloated adversarial court system could be redirected to provide more focused and effective interventions – but it’s going to require a political will and co-ordination that I frankly do not think I will see in my lifetime. The Children Act 1989 was the last great piece of legislation to reform a fragmented system within 30 years, that crossed political lines and united everyone.

We may now have reached a similar crisis point but the political landscape now appears to be have shifted; politicians work with sound bites, quick fixes and policies that will play well with the electorate. Reforming the FJS isn’t ‘sexy’ – but it is essential.

But what is also essential is recognising the powerful statement of the women who said the family courts saved her life. The elephant in the room is the 10% of estimated cases that will be impervious to mediation, support or ‘re-framing’ – those cases which involve men and women who are truly damaged and dangerous and who require a robust court structure to minimise the harm they do. I welcome the proposals for more effective triage – just so long as we do retain the option for judicial control over those cases which need it.

Further Reading

See Practice Direction 36Z which establishes a pilot scheme running until February 2024 to allow certain applications, and stages in proceedings relating to such applications, to follow a procedure different to that specified in the Family Procedure Rules 2010 (“the FPR”) and supporting Practice Directions. These courts are at Bournemouth; Caernarfon; Mold; Prestatyn; Weymouth and Wrexham. It will be interesting to see the results.

The purpose of the pilot is set out at para 2.1

The revised process has been designed for all court users, but with a particular focus on improving the experience of the family court and outcomes for survivors of domestic abuse, including children and litigants in person. The pilot seeks to test a more investigative approach, featuring earlier gatekeeping and information gathering to enable earlier triaging decisions and to front-load engagement with parties rather than engaging through multiple hearings. The court will also seek to hear the voice of the child more clearly through each case in this pilot, with the aim that appropriate engagement and communication are considered throughout proceedings. A more holistic, multi-agency approach is planned, with the court engaging and developing positive working relationships with key local partners such as mediators and local authorities. A review stage during the pilot process will aim to ensure that court orders meet the welfare needs of the child and reduce the number of cases which come back to court.

The woeful state of our debate Part VI: 8 questions to ask family judges.

On November 24th I attended the 9th Annual Family Justice Council debate at the Strand Palace Hotel in London. You can read more about the debate and the work of the FJC at this post on the Transparency Project.

To my surprise, I found Ian Josephs himself in attendance; he took the floor to deliver a speech which had a strangely familiar ring – he seems to repeat the same things over and over again on various blogs. Also, on every chair was a piece of A4 paper which set out ‘Eight Questions to Ask Family Court Judges’ which I assume was also the work of Mr Josephs as it is set out on his website.

But I thought it was worth deconstructing here – to remedy a little the deep unease I felt at seeing Mr Josephs take to the floor in the way he did; without challenge or rebuttal (I did not think it would be appropriate to intervene, given my likely inability to remain composed and polite). Its all very well people saying he is a harmless buffoon – but people do listen to him and worse, they sometimes take his advice. And as his actions with regard to Marie Black show, he isn’t harmless, not by a long chalk.

We have to tread a fine line between heavy handed censorship and giving dangerous people a platform. I felt his presence and his contributions to the FJC debate stepped over that line into giving him a degree of respect and credibility I do not remotely think he deserves.

But judge for yourselves. Here are his ‘8 questions’ and my responses.

1. Great Britain is the only country in the world where substantial numbers of pregnant women seek asylum in other countries to have their babies SAFE from UK social services and forced adoption.  Yes British mothers are fleeing the country in ever increasing numbers to avoid the adoption of their unborn babies. Surely this shows that something is very badly wrong?

The immediate problem with this is that it is strong on rhetoric, weak on substance. There is a network of people helping ‘mums on the run’ ; Josephs himself claims to have helped about 200 families over an undisclosed period of time while Brian Rothery alleged in 2014 that 1 family arrived in Ireland ‘every week’.

But the problem is, as Josephs has enthusiastically confirmed on this blog, he doesn’t carry out any risk assessments or keep any records. So where is he getting the information to support this very clear assertion that ‘substantial’ numbers of women are fleeing and that these numbers are ‘ever increasing’ ?

Nor is it true that ‘Great Britain’ is the ‘only’ country ‘in the world’ where pregnant women leave the country to avoid the authorities. I can’t comment on his use of the word ‘substantial’ as he doesn’t even attempt to define it. For example, the Nordic Committee on Human Rights (whose President Ruby Harold Claesson appears to associate closely with John Hemming, Ian Josephs and Sabine McNeill) claimed in 2012 that 

Since the beginning of the 1980’s, a great number of families have fled from Sweden in order to protect their children from being taken into care and placed in foster homes.

Yes, it does show something is very badly wrong if pregnant and desperate women are choosing to leave their  homes, their families and their support networks with the assistance of cash from Josephs. But what is wrong is that vulnerable people are being so poorly advised; it is notable that Josephs never appears to talk about what happens when it goes wrong – how Ireland, for example, certainly does not see itself as offering a ‘safe haven’ to those escaping a brutal and repressive regime and will co-operate with the UK authorities to return children. 

2. Adoption without consent is a last resort when nothing else will do say the legal guidelines but this cannot be true, since many other countries such as France manage to find other ‘resorts’ and thus never need to use this so called last resort, so why cannot the UK adopt the same remedies as the French for example?

It is a reasonable point that severing the legal ties between child and parent is something that England and Wales seem keener on doing than do other European countries – see paragraph 72 of this report for the Council of Europe in March 2015. But what are these other ‘remedies’ used by the French? It seems that other countries do not keep the same kind of data that we do about the number of children who are not living with their parents. But certainly every European country permits adoption; abusive parents are a universal phenomenon. It seems that other European countries make more use of long term foster care than we do – but this doesn’t necessarily mean that children remain in contact with their parents or that the parents can enjoy any meaningful exercise of their parental responsibilities.

Ian Josephs doesn’t seem to know what other ‘remedies’ or ‘resorts’ other countries use; to be fair to him, that isn’t widely circulated knowledge. Hopefully comparative lawyers such as Dr Claire Fenton-Glynn can undertake further research so we can better understand what other countries do and why they do it.  Ironically, it seems that Ireland may reform its historically restrictive adoption laws in order to increase the numbers of children adopted from foster care.

3. The President of the family courts in re J (a Child) said that since the abolition of capital punishment the most drastic decision any judge could make was to take its child from its parents. If a sane mother with no criminal record has her new born baby removed for ‘risk of emotional abuse’ she is punished without her breaking any laws. Surely punishment without crime is as illogical as it is wrong?

The problem with this is that Ian Josephs continually frames care proceedings and the removal of children as ‘punishing’ parents, when the aim of such proceedings is to protect children. Thus this question is inapt. I understand and accept that to many parents the loss of their children is a devastating emotional blow, but that doesn’t make it a ‘punishment’ inflicted by the state.  That is why new born babies can lawfully be removed. It is not to ‘punish’ the mother but to protect that baby. The law recognises that this is an exceptionally serious course of action and is only lawful if there is a serious risk to the child based on established history, such as drug abuse or persistent cruelty/neglect by the parents of their elder children.

‘Punishment without crime’ is one of his favourite catchphrases but its meaningless in this debate.

4. Many babies and young children are taken at birth for eventual adoption from mothers diagnosed with ‘borderline personalities’ and similar mental failings by court appointed experts. Unlike defendants in criminal courts parents in family courts are not allowed to get a second opinion from a private medical source to call as their witness without permission from the judge. Surely that is a violation of Article 6 (Human Rights Act) giving persons appearing in court the right to call witnesses in determination of their civil rights?

I don’t know what is meant by ‘many’ babies and young children taken because their mother has borderline personality disorder – which is a serious mental health issue. That isn’t my experience in practice. I don’t know what information or statistics he has to allow him to state this.

What does he mean by ‘court appointed experts’ ? Yes, the court must permit the instruction of the expert but the expert must be instructed and agreed by ALL the parties, including the parents. Reference to Article 6 of the ‘Human Rights Act’ is telling – he means Article 6 of the ECHR. Does he actually understand what he is referring to?

If not being allowed a second expert is indeed a breach of Article 6 of the ECHR then it is odd that there has been no successful challenge to section 13 of the Children And Families Act 2014 which makes it very clear that the courts will now be reluctant to permit even one expert, let alone two.

5. Research has shown that Open Adoptions have better results for children then closed adoptions used in the UK that break all contact with birth families. If parents were promised at least one annual contact by court order (birthdays or Xmas perhaps?) thus avoiding the heartbreak of no contact at all (letter box being remote and seldom continued) many parents would not go through the agony of contested hearings so would not this be a good thing?

I agree that we need more research and more open minded thinking about adoption and contact – which I have discussed previously here. I don’t know what research he is talking about. Certainly continued contact with birth families who cannot support the adoptive placement or actively attempt to undermine it, is not a positive experience for anyone. Sadly, the reason why so many adoptive parents and social workers are wary of continued direct contact with birth families may well stem from the kind of advice Ian Josephs gives to birth parents, see for example the first of his ‘Golden Rules’ :

IGNORE SOCIAL WORKERS!! They have NO authority .Don’t talk to them ,never go to their meetings (You will be outnumbered by at least five or six to one and bullied accordingly),never obey them,never never believe what they say,never sign any documents they give you, never allow them in your house(but if they then call the police let the police in but not the social workers),never let them assess you, or send you to the psychobabble charlatans !They are paid to diagnose nearly every parent who is sent to them with non existent illnesses such as borderline personality disorders or narcissistic traits = you don’t like or admire social workers !Many of them really are “the scum of the earth!”and deserve to be locked up for perjury and corruption!

And is it a serious suggestion, that parents will be ‘happy’ with the promise of one direct contact a year and will not then contest the care proceedings? This is an extremely odd belief for Mr Josephs to hold, given that he appears to dedicate most of his website into urging parents to simply refuse to co-operate in any way at all with social workers. His mindset is that removal of children is not justified unless the parents have committed a criminal offence so why should any parent who is not convicted in a criminal court give up their right to care for their child in exchange for one direct contact a year? This suggestion makes no sense.

6. Many babies are taken at birth for ‘risk of emotional abuse’. Something unique in Europe and impossible for parents to defend against court experts who are usually judged more likely on probabilities to be correct than a distraught mother. When adoption follows due to risks that may never happen (from an ex partner who was violent for example) surely these at least are cases where forced adoptions should simply not be allowed?

I don’t know how many babies are taken for ‘risk of emotional abuse’. In my experience at least this is rare. Cases where new borns are removed usually involve serious and long standing issues around drugs, violence and/or mental health difficulties, often the mother has had other children removed who did actually suffer harm.  Again, the reference to ‘court experts’ – there is no such thing.

I note also the trivialising of the violent ex – a repeated refrain in the comments of Mr Josephs. He has little understanding or patience with any suggestion that a women who choses a violent partner may do so out of her own problems with low self esteem or co-dependency and may go on to chose other violent men in the future ,unless she can get some help to break the cycle (for example via the Freedom Programme). Violent men are a massive risk to children.

One of the most unpleasant and uncomfortable parts of the FJC debate for me was when Ian Josephs got a big laugh from the room when he suggested that no Italians would have their children under the UK’s approach to domestic violence. This was offensive and unreal. The problem with violent partners is not simply a bit of excitable shouting as per some offensive Italian racial stereotype. The impact of exposing children to violence is real and serious and Ian Josephs continually shows that he just doesn’t understand.

7. Article 10 (Human Rights Act) reinforces our democratic right to free speech. Surely it is a gross violation to gag mothers whose children have been taken (for possible adoption) by preventing them under threat of jail from identifying themselves and their children when protesting to the media. Similarly is it not also a violation of Article 10 to gag both children in care and parents during contact sessions preventing them from reporting abuse or injuries received in care, discussing their cases, whispering or discussing adoptions under threat that contact will be immediately stopped if parents or children break these rules?

Again, it is NOT the Human Rights Act he means, but Article 10 of the ECHR. I agree he has a point about our stringent rules on confidentiality in children proceedings – I think they are too strict and they should be relaxed; a proposition with which the President of the Family Division agrees. We do need to be able to talk about important issues, such as the State’s intervention in our family lives.

But the rest of this is odd. It underscores that Ian Josephs – in common with so many of the other campaigners in this field – don’t really see children as anything other than adjuncts of their parents. It is the parents’ feelings that matter. The children are there to mop up those feelings. It should be immediately obvious why it is not desirable in a contact session to start conversations about the proceedings or the fact that the children might be adopted. Younger children are likely to be simply distressed and confused by such conversations. Contact should be about enjoying the time with one another, not a platform for a parent to make their case to their children.

8. In many cases parents who have committed no crimes are forbidden by the family courts to contact their own children directly or even indirectly by email etc. Surely that must be a flagrant violation of Article 10 allowing free association when parents as a consequence jailed for breaching the order by sending a birthday card or waving at their own children in the street?

The reason why a parent would be forbidden to so contact their children is almost always because when the parent has been allowed direct contact they have abused that in very serious ways. For example, Vicky Haigh who attempted to brainwash her daughter into believing that she had been sexually abused by her own father. It is a useful indicator of Mr Josephs’ mind set that he cannot accept that Vicky Haigh is anything other than a victim of the Evil Secret Family courts. Again, I suspect this flows from his philosophy that children are important only in so far as they reflect their parents’ desires and emotions.