Tag Archives: parental responsibility

How do children ‘consent’? The interplay of ‘Gillick competence’ and ‘parental responsibility’

This is a post by Sarah Phillimore

And what are the dangers for children of ignoring this?

TLDR:

However intelligent or articulate a child is, they do not necessarily have the same ability as adults to make decisions, particularly those with long term consequences. The capacity of any child under 16 to make decisions about medical or surgical treatment has to be carefully analysed.

Any guidance for adults working with children which ignores or downplays the importance of both Gillick competence and parental responsibility is probably unlawful and probably harmful to children and should be challenged, for all the reasons that I set out below.

Safeguarding Children.

Where adults and children interact, ‘safeguarding’ must be a key consideration. Sadly, some adults are dangerous to children and some children may wish to take risks which will hurt them. As a general point, safeguarding of children demands robust risk analysis. Failures in child safeguarding usually involve an inadequate risk assessment which has failed to either understand or share relevant information. Risks approached on the basis of untested assumptions are unlikely to be properly assessed.

The welfare of children is generally held to be the paramount concern for anyone making decisions about or on behalf of a child. However, ‘paramount’ does not mean ‘exclusive’ – the legal rights of others may need to be considered alongside the child’s welfare.

Any guidance which asserts that it promotes safeguarding of children in the context of choices children aspire to make, ought to be clear about two very important issues:
a. ‘Gillick competence’
b. Parental responsiblility.

If the guidance isn’t clear, that is a red flag that the author of any such guidance either doesn’t care about or doesn’t understand the need to protect children.

Gillick competence

Gillick competence refers to the recognition that the capacity of a child to make serious decisions about his or her life will increase as does the age and understanding of that child. It is a very important concept in the area of consent to surgical treatment – if a doctor doesn’t have a valid consent from either a parent or the child, or a court order, the doctor could be guilty of a criminal offence if he or she goes on to operate on a child.

Although a ‘child’ is defined as a person between the ages of 0-18, Gillick competence is only relevant to children under 16. Once children reach 16 they are held by various statutes as able to make their own decisions across a range of issues.

These are set out in the judgment of Lady Hale at para 26 of D (A Child) (Rev2) [2019] UKSC 42 (26 September 2019). For example Section 8(1) of the Family Law Reform Act 1969 provides that the consent of a child of 16 to any surgical, medical or dental treatment “shall be as effective as it would be if he were of full age”

‘Gillick competence’ derives from the decision of the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 where a mother attempted to argue that children under 16 should not be provided any treatment or advice around sexual issues. The court disagreed and said that younger children could access such services, as long as they were able to understand the implications – i.e. were they ‘Gillick competent’?

The case also gave rise to the ‘Fraser guidelines’ which refer specifically to consent to contraceptive treatment and advice – some argue that it’s important to keep the two separate (see this post from the Quality Care Commission) but I suggest that there doesn’t seem much merit now in keeping advice and treatment around sexual matters separate from a child’s ability to consent to other forms of treatment.

See also Axon, R (on the application of) v Secretary of State for Health & Anor [2006] EWHC 37 (Admin) where the applicant sought to challenge the lawfulness of guidance which allowed doctors not to inform parents that children under 16 were seeking advice or treatment about sexual matters.

The Judge affirmed and was bound by the (then) House of Lords in Gillick and concluded that doctors did not have to tell parents provided they were satisfied that the child understood ALL aspects of the advice, could not be persuaded to tell his or her parents and would be at risk of harm if the treatment wasn’t provided (see para 154) .

What information should be given a child by a health professional?

The case of Montgomery (Appellant) v Lanarkshire Health Board (Respondent) (Scotland) [2015] UKSC 11 deals with what risks about birth should have been shared with an adult patient – but is a useful discussion of the general parameters of what can be meant by ‘informed consent’ – patients do not have the medical knowledge of doctors, may not know what questions to ask. Doctors have a duty to reveal and discuss ‘material’ risks with a patient.

At para 77 the court comments approvingly on 2013 guidance to doctors:

Work in partnership with patients. Listen to, and respond to, their concerns and preferences. Give patients the information they want or need in a way they can understand. Respect patients’ right to reach decisions with you about their treatment and care.”

Doctors need to take even more care with children under 16 as it cannot simply be assumed they have capacity to make decisions; this must be examined in light of their age and understanding.

The two often go hand in hand with neuro typical children. Some teenagers may lack capacity entirely or in most areas following brain injury or learning disability, as set out in the Mental Capacity Act, Decisions then would need to be made by adults for them, regardless of their chronological age.

Most – but not all – 14 year old children would be ‘Gillick competent’ to make decisions across a wide range of issues because their understanding will increase along side their chronological age. Most – but not all – 7 year old children would not be able to give informed consent to anything much beyond what they would like to eat or what clothes they would like to wear.

Determining ‘Gillick competence’ is therefore fact specific and depends on the circumstances of each individual child.

The implications of Gillick competence are provoking debate prior to the court hearing regarding Keira Bell’s challenge to the clinical decision making process at the Tavistock, in placing children on a pathway to medical or surgical intervention for ‘sex reassignment’.

I do not think this legal case in any way challenges the concept of Gillick competence; I think rather it protects it. Consent to medical treatment is only valid if the child has sufficient age and understanding to appreciate what they are signing up for – what are the material risks and the hoped for benefits? It will be interesting to see what the court makes of these arguments in October 2020, so watch this space.

Parental responsibility

Parental responsibility is defined at section 3(1) of the Children Act 1989 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.”

The House of Lords in Gillick approved the following dictum of Lord Denning MR

… the legal right of a parent to the custody of a child … is a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice.

This is a significant matter of status as between parent and child and, just as important, as between each of the parents. (see W (Children) [2012] EWCA Civ 999).

Interplay between Gillick competence and parental responsibility

These two concepts are thus intertwined. The younger the child and the less capacity he or she has to make decisions, the greater the extent of the exercise of parental responsibility. This is important for two main reasons.

  • Most parents, most of the time, have their children’s best interests at heart. Parents are likely to be an important part of decisions around keeping children safe. Who else is advocating for the child?
  • Families are also the ‘breeding ground of diversity’ and entitled to special protection – see Baroness Hale B (Children) [2008] UKHL 35.

Thus the importance of parental responsibility is recognised and protected by domestic and international law.

As was set out by Lady Hale in para 72 of The Christian Institute & Ors v The Lord Advocate (Scotland) [2016] UKSC 51 (28 July 2016):

Many articles in the UNCRC acknowledge that it is the right and responsibility of parents to bring up their children. Thus article 3(2) requires States Parties, in their actions to protect a child’s wellbeing, to take into account the rights and duties of his or her parents or other individuals legally responsible for him or her; article 5 requires States Parties to respect the responsibilities, rights and duties of parents or, where applicable, other family or community members or others legally responsible for the child to provide appropriate direction and guidance to the child in the exercise of his or her rights under the Convention; article 14(2) makes similar provision in relation to the child’s right to freedom of thought, conscience and religion; article 27(2) emphasises that the parents have the primary responsibility to secure, within their abilities and financial capabilities, the conditions of living necessary for the child’s development;

And at para 73:

Individual differences are the product of the interplay between the individual person and his upbringing and environment. Different upbringings produce different people. The first thing that a totalitarian regime tries to do is to get at the children, to distance them from the subversive, varied influences of their families, and indoctrinate them in their rulers’ view of the world. Within limits, families must be left to bring up their children in their own way.

I would therefore expect to see any guidance directed at the safety and welfare of children to give due consideration to both these issues. A failure to do so, risks diluting the effectiveness of advice around safeguarding, and being an unlawful infringement of parental responsibility.

The younger the child in question, the more serious both these failings.

Safeguarding concerns around transitioning children need careful assessment. These could involve:

  • parental pressure to transition due to homophobia or wish for attention
  • lack of parental support or understanding for a child who wishes to transition
  • failing to consider risk to other children of ‘gender neutral’ spaces, either within a school or on residential trips
  • failing to involve parents in discussions about the safety of children
  • a younger child who wishes to take puberty blockers

It is neither ‘kind’ nor ‘inclusive’ to pretend that risks don’t exist and to fail to have a clear eyed and open minded approach to how to deal with them. On the contrary, it is both dangerous and stupid – and, I assert, unlawful.

Children aged 4 are very different to children aged 14. Children are not kept safe by a refusal to discuss – or even admit – this quite basic fact. Any guidance or advice that does not deal clearly with the interplay between Gillick competence and parental responsibility should be approached with caution.

Be wary: guidance and commentary which fails

Trans Inclusion Tool Kit for Schools and Educational Settings 2019 – makes only superficial reference to Gillick competence and only one glancing reference to parental responsibility at page 15. Is explicitly aimed at primary school children.

No one, no issues is off the table when it comes to safeguarding – ‘advice’ from a social worker published in the BASW journal that issues around transition are ‘not’ safeguarding issue. No mention of either Gillick competence or parental responsibility.

Only adults? Good practices in legal gender recognition for youth – explicitly urges for removal of any minimum age requirement for access to services around transition.

When should a trans child’s identity be permitted to be a material issue in a family case? – blog by the legal adviser to the charity Mermaids. The answer is – rarely. If a child of any age says they are trans, they are trans.

Please do let me know of any other examples you can find.

And support the Safe Schools Alliance in their legal action against the Trans Inclusion Took Kit.

Further reading

Transgender children: limits on consent to permanent interventions Heather Brunskell-Evans January 2020

Religious practice, blood transfusion, and major medical procedures – Journal of Paediatric Anasthesia 2009

If you tolerate this – then your children will be next

This is a post by Sarah Phillimore.

The end of safeguarding for children?

Young children do not have capacity to make decisions

A child is a person between the ages of 0-18. Older children may be considered ‘Gillick competent’ and able to make serious decisions about their welfare needs which may then override parental objections and give adult doctors etc the necessary lawful consent to treatment or other interventions etc.

A very broad approach is this. A child under 6 is vanishingly unlikely to have the capacity to make serious decisions. Children between 6-12 will vary in their ability to understand and weigh information. Children approaching their teenage years are likely to be ‘Gillick competent’ and able to give consent to medical treatment etc but even the wishes of a ‘Gillick competent child’ are not automatically held to be determinative of every case.

Parents have a legal obligation to protect the children in their care.

Parents have ‘parental responsibility’ for their children. This is set out at section 3 of the Children Act 1989

In this Act “parental responsibility” means 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 Christian Institute v Lord Advocate [2016] UKSC 512017 SC (UKSC) 29, paras 71 to 74, the Supreme Court recognised the responsibility of parents to bring up their children as they see fit, within limits, as an essential part of respect for family life in a western democracy.

A parent who fails to exercise parental responsibility for their child may find their children removed from their care by the State or even that they face criminal charges of cruelty or neglect. For example, The Children and Young Persons Act 1933 deals with ‘cruelty to a child under 16’

If any person who has attained the age of sixteen years and has responsibility for any child or young person under that age, wilfully assaults, ill-treats (whether physically or otherwise), neglects, abandons, or exposes him, or causes or procures him to be assaulted, ill-treated (whether physically or otherwise), neglected, abandoned, or exposed, in a manner likely to cause him unnecessary suffering or injury to health (whether the suffering or injury is of a physical or a psychological nature), that person shall be guilty of an offence, and shall be liable—

It therefore remains very surprising and alarming to see a constant stream of ‘advice’ and even court proceedings which appear to start from a very different basis entirely. That for one issue alone – that of ‘gender identity’ – a child of ANY AGE should be given the power to make decisions, this cannot be a safeguarding issue and any parent who stands in the way of this should find themselves the subject of legal censure.

If you are talking about children’s rights – which children do you mean?

The state of ‘childhood’ covers a very wide canvass. Children of 6 are not the same, on any level, as children of 16. I have written about this before. See:

No one, no issue is off the table when it comes to safeguarding – I discussed my alarm at a social worker suggesting that parents supporting a child around issues of gender identity was ‘not’ a safeguarding issue.

You had better make some noise; Abusers will eploit bad laws and poor safeguarding

So it was with enormous unease that I read about the latest comment on parental responsibility via issues of gender identity for children. Because this appears to be spearheaded by a major law firm, Dentons.

Roll on Friday reported on November 29th 2019 about the production of a document headed : ‘Only adults? Good practices in legal gender recognition for youth’. This purports to be a ‘report on the current state of laws and NGO advocacy in eight countries in Europe, with a focus on rights of young people’.

The authors of the report recognises with thanks whose who have contributed to it.

IGLYO and Thomson Reuters Foundation wish to extend their thanks and deep gratitude to the legal teams and activists who contributed their time and knowledge to create this report.

The report was prepared by Dentons Europe LLP with the assistance of Dentons UK and Middle East LLP, and the NextLaw Referral Network. Our special thanks to Dentons trainee lawyers Jennifer Sim, Anna Mackinnon and Madeleine Macphail and to the Dentons Europe Pro Bono Trainee, Margaux Merelle.

There is a disclaimer:

This report does not constitute legal advice and should not be relied on as such. Readers wishing to act upon any of the information contained in this report are urged to seek individual advice from qualified legal counsel in relation to their special circumstances.

This report does not necessarily reflect the personal views of any of the lawyers, staff or clients of Dentons, Thomson Reuters Foundation or other lawyers, law firms or organisations that contributed to the development of this report.

Regardless of such disclaimers. this report is clearly intended to be used as a significant lobbying tool with the aim of changing the law. That is the explicit aim of the report.

GLYO’s aim was to create user-friendly resource for itself, its members and the broader advocacy community for use in campaigning efforts for better gender recognition laws across countries in the Council of Europe.

The report wishes to eliminate protections for children based on their age and understanding.

I went through the report to see what mention was made of children by age. There is no attempt to distinguish between the preschool child or the teenager. This is not surprising when you come to page 15 which calls to end the legal minimum age requirement.

Eliminate the minimum age requirement.

Where legal recognition procedures require prior medical treatment or investigation, these are often only available at the legal age of maturity and thus discriminate based on the age of the applicant. In other cases, where there is no medical requirement, minors are barred from legal recognition unless they have parental authorization. This remains a huge hurdle for young trans people who are yet to reach the age of maturity.

See also Page 9: Children and teenagers need to be allowed to define themselves however it suits them, both in social and legal terms

Page 13: The best interests of the child should be a primary consideration in legal procedures, and the child’s view should be given proper weight, taking into account their individual maturity and development. A child’s best interests must include respect for the child’s right to express their views freely and due weight given to said views in all matters affecting the child. In practice this would mean, for example, that a statement from a public authority suggesting that children of a certain age are too young to be aware of their identity is contradictory to the “best interest” principle and the right to be heard. 

There is no doubt that the authors of this report see protections for children based on their age and understanding, do not apply when it comes to the issue of gender identity.

I can find no understanding or assessment of the impact this has on the legal and moral obligations of parents to protect their children, apart from a few vague references to the welfare of children. I can see no mention of the Article 8 rights to respect for family life.

The report wishes to punish parents who want to take responsibility to protect their children

Not only does this document appear to be ignorant of or uncaring about the young child’s lack of capacity to make serious decisions about their physical or mental health, there is even a call for parents to be punished if they do not accede to the demands made by their child – regardless of age or understanding – see page 14.

For example, states should take action against parents who are obstructing the free development of a young trans person’s identity in refusing to give parental authorization when required.

This is confusing, particularly when Norway – a country lauded for its progressive approach – sets out clearly the age restrictions considered important.

Norway is the most liberal, with legal gender recognition being available at any age, although with certain conditions for different age groups. For example, minors under the age of 6 can only have their legal gender altered if they are intersex. For minors between 6 and 16, it is available with parental consent, and for those over 16 a self-determination model operates. In contrast, in Belgium, legal gender recognition is unavailable for minors under the age 16, and for those between 16 and 18 years old parental consent is required.

Do the authors of this report agree there is a distinction between a 6 year old and a 16 year old? I am not sure they do. Rather, this distinction becomes irrelevant as their work is ‘to educate the public that legal gender recognition is a purely civil process’.

This is probably the most dangerous fudging of reality of all. The main reason many share my fears about removal of any age limits when considering transition is that the current model of engagement in the UK is ‘affirmation’ only – and a child set along a pathway of puberty blockers, cross sex hormones and surgery. These issues and the frightening lack of clear understanding about what is motivating every increasing numbers of children to want to change sex were recently investigated by Newsnight and File on Four, when looking at those who now wish to ‘detransition’.

What does it say when you want to keep your arguments hidden?

The report is clear that those campaigning must ‘fly under the radar’ to avoid uncomfortable scrutiny:

The most important lesson from the Irish experience is arguably that trans advocates can possibly be much more strategic by trying to pass legislation “under the radar” by latching trans rights legislation onto more popular legal reforms (e.g. marriage equality), rather taking more combative, public facing, approaches. 

Advice is given about activism ‘behind the scenes’:

Another technique which has been used to great effect is the limitation of press coverage and exposure. In certain countries, like the UK, information on legal gender recognition reforms has been misinterpreted in the mainstream media, and opposition has arisen as a result.

What of any benefit is done in the dark? This says to me loud and clear that the authors of this report know that what they are recommending cannot stand up to scrutiny. It says to me that they risk being motivated by something other than the welfare of the children they profess to be fighting for. When you bring in slick professionalism from law firms and others motivated by profit, it rings some very, very loud alarm bells for me.

Always ask yourself – who stands to benefit from from any change to the law? If the people pushing this are seeking professional or financial validation, always be wary. If the people pushing it wish to ‘fly under the radar’ – always ask yourself why.

There are clear parallels between the recommendations of this group and how cults and predators operate. Those who are to be successfully recruited into the cult must be isolated from friends and family who do not share the cults aims and beliefs.

Unless and until there is a significant body of evidence that the ‘affirmation’ model is one that operates in the best interests of children, we should all be extremely wary and worried about this.

And parents should continue to take responsibility for their children and protect them from making potentially harmful decisions with life long consequences – regardless of what is threatened by lobby groups who do not appear to know or care about the law.

Further reading

Working with young people questioning their gender? Ditch the label and understand the child’s world CAFCASS website March 2018 Anthony Douglas CEO – fails to distinguish between Gillick competent and non Gillick competent children and contains alarming phrase We have to understand whether we should support a fast track transition, which can for example mean we recommend immediate use of hormone blockers so that transitioning does not become more complicated biologically if there is delay.

NHS staff being advised to ignore parents’ wishes if children self-declare as different gender, guidance shows The Telegraph January 2019

Dentons campaigns for kids to switch gender identity without parental approval Roll on Friday 29th November 2019

The document that reveals the remarkable tactics of trans lobbyists The Spectator December 2nd 2019

If a parent has parental responsibility and no one cares, what remedies do they have?

 

I am very grateful to the mother of Shayla for giving me permission to post this. I shall call the child murdered by Matthew Scully Hicks (MSH) by the name her mother gave to her at birth. It is one of the sad and poignant features of many in this case that at the time of her death Shayla was known by at least four different names, which made it difficult to find relevant records about her short life. Page 15 of the Review notes that ‘at the point of her death it was difficult to get the information about when she had seen medical professionals. This was due in part to a number of different IT systems and that S was known by four different combinations of her birth and adopted name.’

Another more poignant issue is her mother’s belief that, had she been told of Shayla’s injuries when in the care of MSH before the making of the adoption order and when she still had parental responsibility, her baby would still be alive. The mother may or may not be right in that belief. But now, sadly, we shall never know. 

What rights do parents have to know their child has been hurt? Even if the parent isn’t caring for their child? Even if there is no chance the parent ever will?

In brief, S was injured on several occasions in the care of MSH before the adoption order was made. Shortly after the adoption order was made he assaulted her again and this time she died. The mother was never told about any of these injuries despite retaining parental responsibility until it was extinguished by the making of an adoption order. She remains of the belief that had she known, there would have been something she could have done to stop her daughter’s death.

Other parents have told me online, and in person, that the same thing has happened to them. That their children suffered sometimes really serious injuries whilst in foster care but they were never told. Just what is going on here? Why is parental responsibility apparently so carelessly ignored when children are looked after? The clue is found in the Review at page 15:

the child while still legally a child looked after, was considered an adopted child and so this shaped the way professionals shared information.’

I suspect what we are seeing here is the logical conclusion of the mantra that ‘adoption is best’ and that ‘children need to be rescued’.  If a child is seen entirely in isolation from his or her parents, if those parents are seen as unsuitable or undesirable then it is hardly surprising that their legal rights are not seen as something worthy of much attention. But this is wrong. It hurts both parents and children.

Even if parents cannot care for their children, by reason of circumstances within or without their control, it is rare to find a parent who doesn’t care about them, who doesn’t have knowledge about their child. Even the very ‘worst’ ‘monster parent’ still has something to offer, even if it is only some sense of identity or history.

I do not think what appears to be widespread negation of parental responsibility when children are looked after is acceptable and it says profoundly ugly things about our society.

 

The review of Shayla’s death.

The only written document I have seen relating to these proceedings is the Extended Child Practice Review C&V CPR 04/2016 (‘the Review’) which was commissioned by the Cardiff and Vale of Glamorgan Regional Safeguarding Board on the recommendation of the Child and Adult Practice Review Subgroup in accordance with the Social Services and Well Being (Wales) Act 2014 Part 7.

What happened between September 2014 and S’s death in 2016.

At page 4 the Review sets out what it is has done and who has been seen in order to complete the work. I note that both the mother and the maternal grandmother were interviewed and the Review explicitly recognises how difficult and emotional it has been for both.

S was placed in foster care in November 2014. A care and placement order were made in May 2015 and S was placed with MSH and his husband in September 2015. The adoption order was made in May 2016 and she died shortly afterwards. MSH was convicted of her murder in November 2017.

The Review sets out the care planning for S at page 6 and concludes it was appropriate; all the evidence suggested that adoption would be in S’s best interests.

MSH and his husband were first approved as adoptive parents in August 2013 and had their first child placed with them in October 2013. The first child was adopted by them in April 2014. They were assessed again in February 2015 and approved in July 2015. In September 2015 the Agency Decision Maker approved the match between S and the adoptive parents and she moved to live with them.

The Review sets out at page 7 that they had access to key documents about this assessment process and considered it was ‘robust, detailed and comprehensive’. All the evidence suggested this would be a positive outcome for the child. There is no mention here of any member of the assessment process or any social worker being related to MSH’s husband. If this is true, I would expect comment.

The Review then considers S’s placement with the adopters. In November 2015 she is taken to the GP by one parent, it is not clear which (reference is made to ‘dad’ or ‘father’ rather than ‘primary carer’ which would have clearly identified MSH) and found to have a fracture to the bone at the end of her left leg. However she is seen only by a Registrar who was not overseen by a consultant; in fact she had two fractures of two different bones in her left leg and this was not discovered until after her death. The doctors, unaware of the second fracture, find the parents’ description of what happened to fit with the injuries found and a cast was put on S’s leg.

In December 2015 MSH texts the Adoption SW to say S has a large bruise on her forehead. The Adoption Review makes no reference to that bruise. Five days later a health professional notes (presumably) another bruise to her forehead and eye. The health professional does not tell anyone else.

In March 2016 MSH telephones 999 to say S has fallen though the stair gate at the top of the stairs, does not lose consciousness but vomits. S goes to hospital for 4 days. Medical professionals accept MSH’s explanation. S is then seen by a GP for a ‘unilateral squint’. A referral is made but she dies before this can take place.

In May 2016 S is seen by consultant neonatologist for routine follow up and no concerns identified. Later than month MSH calls 999 to say S is limp, floppy and unresponsive. He gives different explanations about what happened. S never regains consciousness and died in hospital with bleeding on her brain. The police arrest MSH.

The Review does identify some serious flaws in these procedures:
a. The bruise(s) to S was not recorded and not considered at the Adoption Review
b. S was not taken to the GP until 5 days after the ‘accident’ that led to the fracture of her left leg and in fact a second fracture to the top of her left leg was identified after she died. It was considered highly unlikely for any child to break two separate bones in one accident and had the second fracture been found at the time, ‘concerns would have undoubtedly been raised and child protection procedures instigated’.

The Review notes that immediate organisational changes were made.. I note at page 15 the Review comments ‘the child while still legally a child looked after, was considered an adopted child and so this shaped the way professionals shared information.’

The Review comments on the mother’s views in the following terms:

The Birth Mother shared her concern that it was several months before she was informed of her child’s death. She indicated that she would have preferred to have been informed of her child’s death by somebody that was known to her. Following being informed, she felt she received information from several sources in an ad hoc fashion. Understandably the emotional impact of the child’s death on the birth family has been very significant.’

However the Review does not appear to make any substantive comment on these issues and how they could be dealt with better in the future. I would have liked to see at least some discussion of that.

At page 12 the Review identifies what they have learned from S’s death. A key point appears to be that although MSH, his husband and some of the extended family knew that MSH was under stress caring for two children, this information wasn’t shared with any professionals and only became clear in the criminal proceedings. The Review notes that ‘the overall presentation to the agencies was one of a happy and united family’.

It is clear that MSH was viewed through a ‘positive’ lens and there was nothing throughout the adoption assessment process that could have indicated MSH would injure and kill S. However, as the Review concedes, this ‘positive lens’ led to a minimisation of concerns about S’s injuries, 2 incidences of delay in getting medical treatment to her and MSH informing the HV he had sought GP advice about a bruise when he had not. The Review comments that ‘… with the benefit of hindsight, the monitoring and review of children placed for adoption can be strengthened by ensuring that safeguarding responsibilities are given due emphasis’.

The mother would have liked to have been part of that process to ensure that S was safe. But she was never given any opportunity.

The ‘Key Learning’ identified is set out at pages 14-15 – no discussion of failure to provide information to those who hold PR

  • When children are seen at hospital, Paediatricians are key professionals in recognising the possibility of injuries being caused deliberately
  • Professional judgements should be based upon consideration of all the evidence available rather than individual events
  • Professionals need to ensure the details of a child’s injuries are recorded as significant events.
  • Each agency has a professional responsibility to ensure that they are aware of all the significant events in a child’s life. – no one agency or worker held all the relevant information about S.
  • Adoption reviews should provide opportunities for robust professional scrutiny and challenge – a holistic understanding of the child’s story was not gained
  • The recording and retention of information received via text and other messaging services are an increasingly important source of information.
  • Learning after S’s death – this was made more difficult by the fact that it was difficult to gather all the relevant information due to different IT systems in use and S being known by up to four different names.

 

I note again a failure to refer to the lack of provision of information to those who have PR.

The overall conclusion of the Review is that some systems and practices should be improved but that there was no information during the assessment stages of the parents that could or would have predicted what happened to this child.

This is true but rather skates over the concerns in the body of the Review that the significance of some of this information was missed; either because it was unknown (the second fracture) or because it was not seen in its proper context – serious bruising and delays in taking S to the GP for example. The reason for this is given as that the adoptive parents would inevitably be seen through a positive lens, as adoption is inevitably seen as a positive thing for a child. Thus as the Review concedes there was a ‘lack of professional curiosity’ regarding S’s experiences.

I am concerned about this.  There were two categories of information that were not given to the mother.
a. information that S had been injured and suffered a fractured leg in the care of the adoptive parents prior to the making of an adoption order and while the mother still had parental responsibility (PR).
b. Information about S’s death which occurred after the making of the adoption order, thus extinguishing the mother’s PR.

Information withheld while the mother had PR

The mother was never told about her daughter’s injuries. The failure to inform her was a breach of her continuing Article 8 rights as a holder of parental responsibility. The local authority may argue that this breach would be seen as proportionate and lawful given regulation 45 of the Adoption Agency Regulations 2005, which disapplies section 22 of the Children Act 1989 and thus removes the local authority’s duties to ascertain the wishes and feelings of the parent and take them into account when coming to any decision about the child who is subject to a placement order. However, asking about wishes and feelings is not the same as providing information.

I do have to accept that it is likely that even if the mother had been told about S’s fractured leg, I do not think this would have made any difference to the LA approach as the significance of that injury was that there were in fact two fractures and the second was not found until after S died. I can speculate that if the mother had been told about the bruising and raised complaint, this might have pushed the various agencies into looking more closely at the overall picture painted by the bruising and late presentation to the GP. However, I suspect that absent any information that MSH was struggling to cope – which was not shared by MSH or his husband with any agency – that the mother’s intervention would have made little difference as there was no evidence before the LA to challenged the ‘positive lens’ though which the adoptive family were seen.

However, whether or not the mother could have ‘done’ anything with the information, I do not think is the relevant point here. She still had PR. She should have been told. Parents in this situation should have a remedy pursuant to the Human Rights Act for ‘just satisfaction’.

Is Article 8 ECHR extinguished after adoption? I don’t think so

After S’s adoption, the convention wisdom of the family courts is that all Article 8 rights fall away and thus the mother was no longer seen as anyone with any relevant interest in S’s life or death. This may be the current view of the courts –see Seddon v Oldham MBC (Adoption Human Rights) [2015] EWHC 2609 (Fam) but in my view it is based on a misunderstanding of what is actually protected by Article 8 – protection of family and private life encompasses protection of psychological integrity.

A sound mental state is an important factor for the possibility to enjoy the right to private life (Bensaid v UK para 47). Measures which affect the physical integrity or mental health have to reach a certain degree of severity to qualify as an interference with the right to private life under Article 8 (Ben-said v UK, para 46).

I imagine that the mother’s distress arising out the circumstances of her daughter’s death and the failure of other agencies to provide her with any timely information, would bring this case into the necessary degree of severity of harm.  An adoption order did not change the fact that S was the mother’s daughter and at some point in the future, had she lived, may have sought her out. The pull of biology is recognised as strong and important for most and is reflected in such initiatives as life story work and the Adoption Contact Register.

If the law does says that the mother had no right to learn of her daughter’s death because an adoption order ‘wiped out’ her Article 8 rights, then in my view the law is wrong and should be challenged.

It is my very firm view that no law should be permitted to stand that is capable of imposing such a cruel situation upon any parent, no matter their previous failings and no matter that their child has been adopted. I suspect the problem here is what was identified by the Review at page 15:  ‘the child while still legally a child looked after, was considered an adopted child and so this shaped the way professionals shared information.’

 






Parental Responsibility

What does it mean? And who has it?

Please see this free guidance from the Custody Minefield for further information. 

Parental responsibility (PR) was introduced by section 2 of the Children Act 1989. It replaced the concept of parental rights in section 4 of the Family Law Act 1987.

It is defined at section 3(1) of the Children Act 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

There is no other statutory definition of what PR means. It is often said that this is a matter of ‘status’ rather than ‘power’. If you have parental responsibility, you are responsible for making decisions in your child’s best interests – but that doesn’t mean you can veto the decision of anyone else who has PR (unless you have a Special Guardianship Order); nor you can attempt to ‘micro manage’ the daily decisions made by another parent.

The court described PR in this way in the case of Re D [2014]:

The concept of parental responsibility describes an adult’s responsibility to secure the welfare of their child which is to be exercised for the benefit of the child not the adult. The all encompassing nature of the responsibility underpins one of the principles of the Act which is the ‘no order’ principle in section 1(5) CA 1985: the expectation that all other things being equal parents will exercise their responsibility so as to contribute to the welfare of their child without the need for a court order defining or restricting that exercise. That the status relates to welfare not the mere existence of paternity or parenthood is clear from the decision in Smallwood v UK.

The court described it in this way in Re W (Direct Contact) [2012] EWCA Civ 999 (see para 80):

Whether or not a parent has parental responsibility is not simply a matter that achieves the ticking of a box on a form. It is a significant matter of status as between parent and child and, just as important, as between each of the parents. By stressing the ‘responsibility’ which is so clearly given prominence in the Children Act 1989, section 3 and the likely circumstance that that responsibility is shared with the other parent, it is hoped that some parents may be encouraged more readily to engage with the difficulties that undoubtedly arise when contemplating post separation contact than may hitherto been the case.

In Christian Institute v Lord Advocate [2016] UKSC 512017 SC (UKSC) 29, paras 71 to 74, the Supreme Court recognised the responsibility of parents to bring up their children as they see fit, within limits, as an essential part of respect for family life in a western democracy.

PR in practice

Generally, if you are a parent with PR you should expect to be consulted by the other parent about major matters such as education and health issues. If different people who hold PR can’t agree, they will have to go to court to ask the Judge to decide what to do. The following are examples of situations where you need to inform and consult the other parent before making a decision. Day to day decisions about what time the child gets up, what he has for breakfast etc are not usually issues that you have to consult with the other parent about.

  • education – decisions about applying or attending school, which parent will attend what school functions and when.
  • which parent is spending what time with children in school holidays
  • planned medical or dental treatment which is more than just routine check ups
  • any decision to stop treating a child with prescribed medication.

Taking children abroad

You can only take your child out of England and Wales without the consent of anyone else who has PR for 28 days IF you have a child arrangements order (previously called a residence order).

If you don’t have such an order or you are out of the country for longer, and you don’t have the consent of the other parent with PR, you could be committing the offence of child abduction. Many countries will now require that you travel with a letter from the other parent, confirming that they consent to their child travelling.  See this article for further discussion.

Many parents are not aware of this and mistakenly think they do not need the other parent’s permission. If the other parent won’t consent, you will have to apply to court for a Specific Issue Order.

If you have a Special Guardianship Order (SGO) you can take the child out of the jurisdiction for up to 3 months without consent.

Different treatment of mothers and fathers

Men and women are treated differently when it comes to PR. Mothers and married fathers have PR automatically. An unmarried father has parental responsibility for his child by:

  • being registered as the child’s father on his birth certificate,
  • by a parental responsibility agreement entered into between the parents or
  • by a court order. An unmarried father can only lose parental responsibility by an order of the court to that effect.

Section 111 of the Adoption and Children Act 2002 [ACA 2002] amended the Children Act 1989 to give PR automatically to unmarried fathers who are on the child’s birth certificate after 1 December 2003.  See section 4(1).

The reasons for this were described in Re M (A Child) sub nom PM v MB and M (A Child) [2013] EWCA Civ 969 at [14]:

Since 1 December 2013 and by section 4(1) CA 1989 as inserted by section 111 Adoption and Children Act 2002, an unmarried father acquires parental responsibility by the inclusion of his name on the child’s birth certificate. That legislative change accompanied society’s recognition of and expectations for the exercise of parental responsibility by parents who are not married or in a civil partnership and who have separated with the consequence that the child does not live with one or other of them. It has become more common for parental responsibility to be considered by a court before other substantive welfare decisions are made because it is an important status which is an incident of the family and private lives of the adults and child concerned and which is reflected in the way in which parents should exercise their responsibilities for their child. It should be rare for a father not to be afforded this status.

What do the courts consider if a father is arguing for parental responsibility?

In  Re D [2014] EWCA 315 the Court of Appeal considered the case law.

Parental responsibility is an issue concerned with the upbringing of a child and therefore under section 1(1)(b) CA 1989 the child’s welfare will be the court’s paramount consideration. The court doesn’t have to consider the section 1(3) (the ‘welfare checklist’) but it’s probably a good idea and the court may find it helpful to use an analytical framework not least because welfare has to be considered and reasoned.

The paramountcy test is overarching and no one factor that the court might consider in a welfare analysis has any hypothetical priority. The factors that are often considered are the degree of commitment which the father has shown to the child, the degree of attachment which exists between the father and the child and the reasons of the father for applying for the order.

But these factors are NOT a ‘substitute test’ to be applied (see Re M (A Child) sub nom PM v MB and M (A Child) at [15] and [16]

 

Can parental responsibility be taken away?

Neither mothers nor married fathers can have their parental responsibility removed, unless an adoption order is made. This distinction has been found compatible with Article 8 of the ECHR. (See Smallwood v UK (29779/96) (1999) 27 EHRR CD 155).

Unmarried fathers can have their PR removed if the court finds this is in the best interests of the child but this is a very unusual step.

For a case where PR was removed from an unmarried father who had pleaded guilty to sexual offences against the mother’s other children and caused huge emotional devastation to the family,see Re D [2014] EWCA 315 discussed above.

For a recent example of this rare decision by a court to remove a father’s PR after his persistent abusive behaviour, see the case of C v D & Anor [2018] EWHC 3312 (Fam) (28 September 2018)

A father who caused catastrophic brain injury to a child was also stripped of PR. See K (CESSATION OF PARENTAL RESPONSIBILITY) [2019] EWFC B54 (09 October 2019)

As was a father who attempted to murdered the children’s mother and was sentenced to a minimum term of 13 1/2 years in prison – see X and Y (private law – change of name – termination of parental responsibility) [2021] EWFC B24 (19 April 2021)

Consequences for PR of different orders

A care order

The key distinction between care and supervision orders is found under section 33(3) of the Children Act. Only a care order can gives the LA parental responsibility and the power to decide how any one else can exercise their parental responsibility. It is often said that a care order allows the LA to ‘share’ parental responsibility but the more realistic description is that the LA is now in the driving seat when it comes to making decisions about the child.

The LA can control parents’ exercise of their parental responsibility when ‘necessary’.
However, under section 33(4) the LA can only use their powers to control other people’s parental responsibility if to do so is necessary to safeguard or promote the child’s welfare. Together with the considerations of Article 8 of the ECHR and the need to act proportionally, the LA will need to think seriously about whether or not what it proposes is ‘necessary’.

For further information about the impact of care and supervision orders, see this post.

A special guardianship order

The holder of the SGO has ‘enhanced’ PR and can override the wishes of others with PR. See 14(C) of the Children Act. For more information on SGOs, see this post.

An adoption order

This will sever all legal ties between the child and the birth family and the parents will no longer have PR.

Further reading

How parental responsibility can be acquired and lost can depend on the person concerned and certain court orders. There can be restrictions on how parental responsibility is exercised, including the gaining of court orders in order to settle or prohibit a particular action by someone with parental responsibility.

  • For a useful discussion about the development of ‘parental responsibility’ see from paragraph 19 of the judgment of the Supreme Court in September 2019 in D (A Child) [2019] UKSC 42 (26 September 2019) The majority of the court found that the ambit of parental responsibility could not extend to consenting to deprive a 16 year old of his liberty, if that child lack capacity to give his or her own consent.






Disputes between parents about seeing their children

This post looks at the law in cases following the parents separation, when the parents can’t agree about how the children should spend time with each of them. In cases where there is no evidence that contact with a non-resident parent would harm a child yet the resident parent claims contact would not be in the child’s best interests, can courts force parents out of their entrenched positions?

Sarah Phillimore, barrister at St John’s Chambers, looks at the issue and offers some practical advice.

This article was first published by Lexis on 19th May 2015 and has since been edited –  you can get more articles like this from Lexis at this web address www.lexisnexis.com/uk/lexisps

To what extent can or will the courts intervene to force parties out of entrenched positions?

Most experienced Family Court judges would acknowledge that there is a category of private law Children Act disputes which present profoundly difficult challenges to the court and which frequently cause judges near despair as they endeavour to achieve a positive and enduring outcome for the child. Descriptive language is used to highlight the complexity of these cases – for example, implacable hostility, intractable dispute, high conflict dispute.  In some of these cases the judge’s sense of despair at having failed to achieve a positive outcome for the child is palpable. In Re D (Intractable Contact Dispute: Publicity) [2004] EWHC 727 (Fam) Munby J memorably began his judgment by saying: ‘On 11 November 2003 a wholly deserving father left my court in tears having been driven to abandon his battle for contact with his seven year old daughter D.’

HHJ Bellamy 2018

Statute Law

The relevant statutory framework is found at section 1(1) and 1(3) of the Children Act 1989 (CA 1989). The child’s welfare is the paramount consideration and the court must have regard to the welfare checklist.

Section 8 allows the court to make what used to be called ‘contact’ and ‘residence’ orders but which are now ‘child arrangements orders’ following the Children and Families Act 2014 (CFA 2014).

The CFA 2014 also amended section 1 of the CA 1989 to include that when a court is considering a section 8 order, it must presume, unless the contrary can be shown, that the involvement of a parent in the life of a child will further the child’s welfare. ‘Involvement’ quite explicitly is not linked to any particular division of a child’s time. This amendment is thus very far from what father’s rights campaigners wanted; there is no presumption that children must spend their time 50/50 with each parent. It is difficult to see what practical change is provided by this amendment, as it offers a rebuttable presumption that is a reflection of existing law and practice.

General principles from case law.

The following cases provide general principles:

Each case is unique on its own facts and requires careful scrutiny. However, there are general principles which are usually applicable to every case:

  • the court is concerned with the interests of the mother and the father only in so far as they bear on the welfare of the child.
  • It is almost always in the interests of a child whose parents are separated that he or she should have contact with the parent with whom the child is not living. Contact should thus be terminated only in exceptional circumstances.
  • The court has power to enforce orders for contact, which it should not hesitate to exercise where it judges that it will overall promote the welfare of the child to do so.
  • The state has positive obligations to protect the Article 8 rights of parents and children. Thus, the judge must grapple with all the available alternatives before abandoning hope of achieving some contact. He must be careful not to come to a premature decision, for contact is to be stopped only as a last resort and only once it has become clear that the child will not benefit from continuing the attempt.
  • There are rare cases where the court decides that there cannot be immediate direct contact because that would injure the child’s welfare, see Re D (A Minor) (Contact) [1993] 1 FCR 964 at pp 971G–972A per Waite, LJ.
  • If there cannot be immediate direct contact there should be indirect contact so that the child grows up knowing of the love and interest of the absent parent with whom, in due course, direct contact should be established
  • It is an important part of the obligations of being a parent that the parents take responsibility for making contact work – see paras 72 onwards of Re W [2012].

EDIT 9th April 2019 – for a thorough review of relevant practice and principle see the Court Of Appeal decision in G (Children: Intractable Dispute) [2019] EWCA Civ 548

Potential problems with the courts’ approach.

The courts have unrealistic expectations about how parents will respond to pleas to act responsibly.

A horribly clear example of where the courts’ pleas fell on deaf ears is found in the D (A child – parental alienation) (Rev 1) [2018] EWFC B64 (19 October 2018) which is discussed below.

In Re H-B (Contact) [2015] EWCA Civ 389, the court heard that direct contact with the father and his two daughters had stopped in 2008. There was an incident in which the father’s new wife had been angry with the older girl and grabbed her, causing a superficial injury. The father appealed against the refusal of his application for direct contact. Both parents were found to have behaved poorly.

The President of the Family Division considered the obligations upon parents when a child refuses contact with the other parent.  See paragraph 75:

the responsibility of being a parent can be tough, it may be ‘a very big ask’. But that is what parenting is all about. There are many things which they ought to do that children may not want to do or even refuse to do: going to the dentist, going to visit some ‘boring’ elderly relative, going to school, doing homework or sitting an examination, the list is endless. The parent’s job, exercising all their parental skills, techniques and stratagems – which may include use of both the carrot and the stick and, in the case of the older child, reason and argument –, is to get the child to do what it does not want to do. That the child’s refusal cannot as such be a justification for parental failure is clear: after all, children whose education or health is prejudiced by parental shortcomings may be taken away from their parents and put into public care.

  1. I appreciate that parenting headstrong or strong-willed teenagers can be particularly taxing, sometimes very tough and exceptionally demanding. And in relation to the parenting of teenagers no judge can safely overlook the teaching of Gillick v West Norfolk and Wisbech Area Health Authority and anor [1986] AC 112, in particular the speeches of Lord Fraser of Tullybelton and Lord Scarman. But parental responsibility does not shrivel away, merely because the child is 14 or even 16, nor does the parental obligation to take all reasonable steps to ensure that a child of that age does what it ought to be doing, and does not do what it ought not to be doing. I accept (see Cambra v Jones [2014] EWHC 2264 (Fam), paras 20, 25) that a parent should not resort to brute force in exercising parental responsibility in relation to a fractious teenager.  But what one can reasonably demand – not merely as a matter of law but also and much more fundamentally as a matter of natural parental obligation – is that the parent, by argument, persuasion, cajolement, blandishments, inducements, sanctions (for example, ‘grounding’ or the confiscation of mobile phones, computers or other electronic equipment) or threats falling short of brute force, or by a combination of them, does their level best to ensure compliance. That is what one would expect of a parent whose rebellious teenage child is foolishly refusing to do GCSEs or A-Levels or ‘dropping out’ into a life of drug-fuelled crime. Why should we expect any less of a parent whose rebellious teenage child is refusing to see her father?’ 

The ‘tough’ approach of the court cannot however be a a solution to the problem of intractable contact disputes, because it does not adequately or even at all address the following circumstances:

  • The increasing autonomy of the older child.
  • The resident parent who simply will not or can not support a relationship with the other parent.

The older child

For older children, the suggestions by the sir James Munby that it is a straightforward matter of simply exercising a bit of parental muscle to bribe or compel a child, does not reflect the reality of the child’s growing autonomy. Various cases demonstrate that it is likely that the child will simply refuse to do what is expected and may even react in quite extreme ways to the expectation: see for e.g Re K (Children) [2014] EWCA Civ 1195 where the children simply ran away.

Of course, parental responsibility does not ‘shrivel away’ when dealing with a Gillick competent teenager, but as a child’s autonomy develops, the ability of a parent to impose his or her will inevitably decreases. A parent simply cannot dictate to a 15 year old as if he were 5 or even 10 years old. To do so is likely to be emotionally abusive and ineffective.

This is reflected in section 9(6) of the CA 1989; section 8 orders will only be made for children over 16 if the circumstances are ‘exceptional’.  In reality, many judges will be wary of imposing orders upon teenagers even younger than 16; recognizing that they can and do ‘vote with their feet’.

The parent with whom the child lives does not support contact

This second part of the problem is not even touched upon in re H-B; the mindset of the resident parent and the impact of this on the child. The likely reality in many cases is that the resident parent has consistently exposed the child to a very negative view of the absent parent. In terms of the impact of this on the child, it probably doesn’t matter what motivates the resident parent, be it genuine belief or something more malicious. The child will absorb the resident parent’s reality. What else can they do?

These problems are then further compounded if the child has not seen the absent parent for some time and/or was very young at the last meeting and therefore has little or no independent memory of the absent parent.

In such cases, experts consider it unlikely – even impossible – that a child living in such circumstances can start thinking positively about the absent parent. The resident parent will assert that it is simply not in the child’s best interests to have this positive view. It is not possible to force therapeutic work on an unwilling resident parent.

The parent who deliberately alienates a child

Discussion of D (A Child – parental alienation) 2018

A very interesting case about parental alienation has been published by the DFJ for Derbyshire, HHJ Bellamy. This is D (A child – parental alienation) (Rev 1) [2018] EWFC B64 (19 October 2018). This case involved the child D who was born in 2005. Proceedings had been ongoing for over ten years, albeit with a four year respite from 2012 – 2016,  and had cost a staggering amount of money for both parents – about £320,000 over ten years. A judge hearing the case in 2008 commented: ‘On the face of it this is already a dispute which is going to escalate, or has the potential to escalate and the risk is that D will be damaged by these matters.’  And sadly, that is exactly what came to pass.

There was a residence order made in the father’s favour in 2011 and the mother’s application to appeal was refused in 2012. Following a relatively peaceful four years, the mother then refused to return D to his father’s care in November 2016 and the father did not see D again until March 2017. A final hearing was listed for April 2018 after the instruction of a psychologist. We can see clearly in this chronology how such cases often end up drifting.

in early 2018 D made allegations of a serious assault upon him by the father and contact against ceased. The police became involved but took no further action and the Judge granted the father’s application in August 2018 that D give evidence at the finding of fact hearing.

D gave evidence and was very clear, saying (para 74):

I just want a normal life, living in happiness with mum. I cannot go back to my father’s. I was promised by my mum and the police officer that dad wouldn’t hurt me ever again. Now, I am here in court because he hurt me bad. Why can’t I just have a life that isn’t based on court and stress? I just want a life that I can live not live in fear from, please.’

D’s guardian put forward a schedule of six allegations that D made against his father. The court noted the evidence of the psychologist Dr Spooner at para 85.

D presented with what seemed like a pre-prepared and well-rehearsed script of all the things he wanted to tell me about his father. He took every opportunity to denigrate him, his family and his partner. Each time I attempted to ask him about issues not related to his father, such as school, hobbies and so on, he quickly derailed himself and continued on his frivolous campaign of denigration.

The court heard a great deal of evidence from social workers and other experts about the alleged injuries suffered by D. It is disturbing to note how the Judge was not assisted by some of the evidence from the local authority, not least because the social worker who prepared the section 37 report was working from the assumption that everything a child said must be true.

The father denied assaulting D but had to hold his arms when D was being aggressive towards him.  The Judge did not find any of the allegations proved; he found the father and his partner to be honest witnesses and this was a case where the mother was determined to ‘win’ at any cost. The judge found that she had deliberately alienated D from his father.

Analysis of what is meant by ‘parental alienation’

From paragraph 165 the Judge considers the issue of parental alienation. At para 169 he refers to the research Dr Julie Doughty at Cardiff University. She comments:‘

There is a paucity of empirical research into parental alienation, and what exists is dominated by a few key authors. Hence, there is no definitive definition of parental alienation within the research literature. Generally, it has been accepted that parental alienation refers to the unwarranted rejection of the alienated parent by the child, whose alliance with the alienating parent is characterised by extreme negativity towards the alienated parent due to the deliberate or unintentional actions of the alienating parent so as to adversely affect the relationship with the alienated parent. Yet, determining unwarranted rejection is problematic due to its multiple determinants, including the behaviours and characteristics of the alienating parent, alienated parent and the child. This is compounded by the child’s age and developmental stage as well as their personality traits, and the extent to which the child internalises negative consequences of triangulation. This renders establishing the prevalence and long-term effects of parental alienation difficult…’

At para 170 the Judge considers the new CAFCASS assessment framework for private law cases. The assessment contains a section headed ‘Resources for assessing child refusal/assistance’ which in turn has a link to a section headed, ‘ Typical behaviours exhibited where alienation may be a factor ’. These include:

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

What can lawyers to either stop cases going wrong or intervene positively when they do?

Unfortunately, it is my view that the ability of lawyers or the courts to have much positive impact on the more extreme examples of intractable dispute, is very limited. This is because these are not legal problems. They arise out of the psychological vulnerabilities of one or both of the parents.  Even if parents could be persuaded to go to family therapy or family mediation it is unlikely that many could afford to do this and no state agency can be compelled to pay. The court room is clearly a very unsuitable arena to try to deal with the often toxic emotional fall out from failed adult relationships.

However, there are elements to these proceedings that the lawyer can influence and the court can attempt to dictate, which may have a positive influence on the outcome – or at the very least reduce the time taken and the emotional and financial costs incurred. See further the judgment of Hedley J in re E (A Child) [2011] EWCH 3251 at paragraph 11 onwards and A (A Child) [2013] EWCA Civ 1104.

I suggest that the fundamental requirements are:

  • Careful analysis of the issues and the available options;
  • Which feeds into a realistic timetable, avoiding drift

Intractable contact disputes that go horribly wrong usually have dragged on over many years. This increases the child and the resident’s parent aversion to the whole process; they simply want it to end. Lawyers can help by trying to identify as soon as possible which of their cases are likely to turn into intractable disputes and then being clear sighted about the options which are realistic in their case. It is essential at the earliest possible stage, all agree a clear timetable for either achieving contact or recognizing that it is not achievable whilst the child remains with the resident parent. There will then need to be full and honest appraisal of the likely success if a child is removed from the resident parent – either into foster care or to care of non- resident parent.

Proper analysis of the available options and the impact of each on the child’s welfare requires knowledge and understanding about what is in reality available to a family; little point in considering ‘specialist family mediation’ for example, if there are no providers within a reasonable distance or no one can afford to pay for it.

The following considerations may help this process:

  • Clear analysis at the earliest stage as to the degree and nature of opposition to contact. How objective and reasonable is the opposition? How flexible are the parents prepared to be? How quickly did problems escalate? Warning bells will start to ring at an early stage and should not be ignored.
  • If the non-resident parent does not accept the objections raised by the resident parent, consider an early fact finding so that there is a clear understanding of potential problems. Courts are often reluctant to go down this route (see Re E, para 11), worried that parents may simply focus on allegations against each other rather than the welfare of the child. However, this risk needs to be considered against the problems that can be caused by allegations that are never confronted and which linger on throughout the proceedings, to the detriment of any resolution;
  • If a case shows signs of being intractable, judicial continuity is very desirable;
  • Robust enforcement of any contact orders made at an early stage – don’t let this drift, bring non-compliance straight back to court. Be clear about why it hasn’t worked – did the resident parent fail to encourage? Did the non-resident parent fail to comply, for e.g. with indirect contact?;
  • The non-resident parent should be prepared to make reparation for any behaviour that has contributed to the resident parent’s distrust – not every case involves an absent parent who is wholly without reproach;
  • Making timely decisions about when a guardian or expert evidence is required. If the resident parent for example refuses to accept the outcome of a finding of fact this is usually the time when it is abundantly clear more needs to be done;
  • Exploring if there is any possibility of any help via therapeutic intervention/specialist mediation and how this is to be funded, etc
  • If it becomes clear that contact is not achievable whilst the child is living with the resident parent, there must be proper analysis of the available options and the impact on the child’s welfare of each – for example, should the court be invited to make an order under section 37 of CA 1989 for an interim care order so that the child goes into foster care?

Dr Doughty’s recommendations (cited with approval by HHJ Bellamy in para 171 of his judgment in Re D above), following a review of the case law and literature about parental alienation are:

  • Courts will not allow the implacable hostility of one parent to deter them from making a contact order where the child’s welfare otherwise requires it. In such a case contact should only be refused where the court is satisfied that there is a serious risk of harm if contact were to be ordered.
  • In some very exceptional cases, where the non-resident parent’s behaviour cannot be criticised, the effect on the child of ongoing contact proceedings is such that the court will decide those proceedings should not continue.
  • Where allegations of parental alienation are made, the court will need to record a determination of the facts, or risk an unnecessary appeal.
  • There is no blanket solution, but outcomes ae more likely to meet the child’s needs where there is:
    • Early resolution of disputed facts about domestic violence.
    • Early intervention where alienation appears to be an issue

The need to consider findings of fact seriously has been endorsed by the President of the Family Division – note J (DV Facts) [2018] EWCA Civ 115 (06 February 2018)

The views of Sir James Munby

The former President of the Family Division delivered a talk to the Annual General Meeting / Conference of NACCC, Amersham 24 November 2018, entitled ‘Dealing with Parents’ Conflict and Unreasonable Behaviour’ where he commented:

What do I have in mind?

  • First, the court must decide whether the proceedings should be allowed to continue or whether the matter should be dealt with out of court, either
    • because the parents should be required to exercise their parental responsibility and resolve matters themselves: see T v S[2013] EWHC 2521 (Fam), [2014] Fam Law 1664, and, for an elaboration, my lecture, A Matter for the Parents? A Matter for the Judge? Thoughts on 30 years of the Children Act and the revival of the inherent jurisdiction, [2019] Fam Law (forthcoming); or
    • because the parents should be diverted into some form of N-CDR, for example, mediation, arbitration or whatever.
  • Secondly, the court must decide whether or not there needs to be a fact-finding hearing and, if so, give appropriate directions for a focused fact-finding hearing at the earliest possible opportunity.
  • Thirdly, and if the case is to remain in court without an immediate fact-finding hearing, the court must decide which ‘track’ the case should follow:
    • what I will call the ‘in and out’ track, where it is realistic to imagine that the case can be resolved at the First Hearing Dispute Resolution Appointment (FHDRA); or
    • what I will call the ‘ordinary’ track, where although it is not realistic to anticipate resolution at the FHDRA there is nothing to suggest that the case is or will become intractable; or
    • what might be called the ‘special’ track for the potentially more complex cases.

Finally, and assuming that the case is to proceed in court, two things are essential:

  • First, proper assistance, before and at the hearing, for unrepresented litigants.
  • Secondly, radical reform of the process at the hearing itself.

I take these in turn.

Proper assistance, before the hearing, for unrepresented litigants raises a fundamental issue of enormous practical importance. The simple reality, I fear, is that:

  • the guidance and other explanatory literature available for litigants in person is sadly inadequate;
  • the court forms are very far from user friendly; and
  • the Family Procedure Rules 2010 and associated materials are simply not fit for purpose and, from the point of view of the litigant in person, an obstacle to proper access to justice.

Conclusion

However, in my view, the fundamental issue will always remain; these are not legal problems. These cases are almost always a manifestation of the psychological vulnerabilities of one or both of the parents.

Lawyers and the courts have poorly designed and often ineffectual tools at their disposal to make much headway. But unless and until a more effective arena is available to tackle the problem of intractable contact disputes, we will have to do our imperfect best.

Further reading

Case Law

A case where shared residence was agreed after 10 year dispute – see Re J and K (Children: Private Law) [2014] EWHC 330 (Fam)

See Re C (A Child) [2018] EWHC 557 (Fam) –  Unsuccessful appeal to the High Court by a mother against a decision which transferred the residence of C, aged six, to her father, in light of the mother’s opposition to progressing C’s contact with her father. Permission to appeal was refused as being totally without merit.

Re A (Children) (Parental alienation) [2019] EWFC  –Failed transfer of residence after an expert underestimated the strength of the children’s existing attachment to their father.

Transfer of residence of child from mother to father – RH (Parental Alienation) [2019] EWHC 2723 (Fam) (03 October 2019)

Re S (Parental Alienation: Cult) [2020] EWCA Civ 568 – child ordered to live with father if mother continued to refused to give up her adherence to a ‘harmful and sinister’ cult.

Articles and Research

See this article from the Custody Minefield about how intractable contact disputes can go wrong or get worse.

Address from the President of the Family Division to Families Need Fathers, June 2018

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

There is a paucity of empirical research into parental alienation, and what exists is dominated by a few key authors. Hence, there is no definitive definition of parental alienation within the research literature. Generally, it has been accepted that parental alienation refers to the unwarranted rejection of the non-custodial parent and an alliance with the alienatingparent characterised by the child’s extreme negativity towards thealienated parent due to the deliberate or unintentional actions of the alienating parent so as to adversely affect the relationship with the alienated parent. Yet, determining unwarranted rejection is problematic due to its multiple determinants, including the behaviours and characteristics of the alienating parent, alienated parent and the child. This is compounded by the child’s age and developmental stage as well as their personality traits, and the extent to which the child internalises negative consequences of triangulation. This renders establishing the prevalence and long-term effects of parental alienation difficult.

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

The Cafcass Child Impact Assessment Framework (CIAF) sets out how children may experience parental separation and how this can be understood and acted on in Cafcass. The framework brings together existing guidance and tools, along with a small number of new tools, into four guides which Cafcass private lawpractitioners can use to assess different case factors, including:

  • Domestic abuse where children have been harmed directly or indirectly, for example from the impact of coercive control.
  • Conflict which is harmful to the child such as a long-running court case or mutual hostility between parents which can become intolerable for the child.
  • Child refusal or resistance to spending time with one of their parents or carers which may be due to a range of justified reasons or could be an indicator of the harm caused when a child has been alienated by one parent against the other for no good reason.
  • Other forms of harmful parenting due to factors like substance misuse or severe mental health difficulties.

Resources and Links recommended by the Alienation Experience Blog

Useful analysis of case law from UKAP.ONE






The Social Worker tells me my child needs medical treatment?

This post looks at the legal and practical difficulties parents may face if they disagree with doctors or social workers about the medical treatment their child needs.  Doctors cannot examine or treat anyone without getting consent, unless the situation is life threatening and urgent. Medical intervention can range from the trivial to the really serious and the further up the scale of intervention you go, the more likely you are to encounter disagreements about the best way forward. Who gets to decide and how?

The case of Ashya King

For more detail about Ashya King’s case see this post from the Transparency Project.

The  issue of managing disagreements between parents and doctors came to the fore in September 2014 with the case of Ashya King,  a five year old boy who was being treated for cancer in the UK. His parents and the hospital could not reach agreement about the best treatment options for Ashya; his parents removed him from the UK to seek treatment abroad and were then arrested after the hospital informed the police and the local authority (LA) of their disappearance.

The LA applied for Ashya to be made a ward of court, which meant that no decision could be taken about his treatment without permission from the court. Upon arrest, Ashya’s parents were kept apart from their son for several days. The case caused enormous concern both in the UK and internationally. Of particular concern is the parents’ view that they had no choice but to leave in the way they did as they were alarmed by the hospital suggesting that the LA would need to get involved, even to apply for an emergency protection order. It is clear that the working relationships between the parents and the doctors must have seriously deteriorated, if not broken down completely.

When the case came before Baker J on September 8th he discharged the wardship. He found that the earlier decision to make Ashya a ward of court was justified on the information that the court had before it. But now the position had changed; there was a clear treatment plan which was not opposed by either the LA or Ashya’s guardian. The Judge could not comment on the desirability of issuing a European arrest warrant which resulted in the parents’  detention, but commented that it was clearly not in Ashya’s best interests to have been separated from his parents.

So what happens if you disagree with the treatment proposed by professionals?

The importance of consent.

The fundamental principles of consent were discussed in the case of A (Children) [2000]. Every adult person of sound mind has the right to say what can and can’t be done to his body. Without consent, medical examinations or procedures are unlawful – they are either the criminal offence of assault or the civil offence of trespass to the person. Therefore it is very clear that consent must be given to any kind of treatment or examination unless its an emergency and doctors say they had to act out of ‘necessity’.

Consent is only valid if it is:

  • voluntary – given freely;
  • informed – understanding the implications of consenting;
  • and the person giving it has capacity – they are capable of making decisions.

Who does not have capacity?

A ‘child’ is defined in the Children Act as a person between the ages of 0-18 years, but it’s really important to distinguish between children who are 16 and older as 16-17 year olds can provide consent to treatment as if an adult.

  • Children under 16, unless found to be  ‘Gillick competent’  do not have the capacity to consent to treatment.  A child will have capacity only if he or she is able to understand the nature, purpose and possible consequences of the treatment proposed. For a useful discussion of issues that arise around understanding and capacity see the article about transgender children in Further Reading below. 
  • Adults or children over 16 years, may not have capacity as defined by the Mental Capacity Act 2005,  if they can’t make their own decisions because of some problem with the way their brain or mind is working. This could arise due to illness, disability or exposure to drugs/alcohol. It doesn’t have to be a permanent condition.

An example of a situation where an adult was found not to have capacity to consent to medical treatment, is the ‘forced C-Section’ case of 2013 (see P (A Child) [2013) where the pregnant mother was experiencing serious mental health difficulties and the hospital were concerned about the risks of a natural birth in such circumstances.

Who do doctors ask if the patient doesn’t have capacity?

They will need to get:

  • consent from someone who has parental responsibility (PR) for the child; or
  • permission from the court in the case of an adult who lacks capacity or where there is a dispute between adult carers of the child.

Parental Responsibility

Parental responsibility is defined at section 3 of the Children Act 1989. The British Medical Association (BMA) ethics guidance from 2008 describes PR in these terms:

  • Parental responsibility is a legal concept that consists of the rights, duties, powers, responsibilities and authority that most parents have in respect of their children. It includes the right to give consent to medical treatment, although as is discussed below, this right is not absolute, as well as, in certain circumstances, the freedom to delegate some decision-making responsibility to others. In addition, competent children can consent to diagnosis and treatment on their own behalf if they understand the implications of what is proposed (see below). Those with parental responsibility also have a statutory right to apply for access to the health records of their child, although children who are mature enough to express views on the issue also need to be asked before parents see their record. Parental responsibility is afforded not only to parents, however, and not all parents have parental responsibility, despite arguably having equal moral rights to make decisions for their children where they have been equally involved in their care.

In theory, doctors only need consent from one person with PR to go ahead with treatment. However this will rarely be a wise course of action if there are strong objections from others who have involvement in the child’s upbringing. The best ethical option in cases of dispute, is  to apply to the court  for an order to either allow or refuse the treatment in question.

An example of such application to court can be found in the case of Neon Roberts, whose parents disagreed about the best way to treat his cancer. Parents may also disagree about specific medical interventions, such as circumcision or blood transfusions on religious grounds.

While the parties are waiting for a court decision regarding treatment, doctors should only provide emergency treatment that is essential to preserve life or prevent serious deterioration of health.

If the doctors consider that by refusing consent to treatment you are not acting in your child’s best interests, they will need to raise this issue with the LA who may need to consider issuing care proceedings.

Further information for doctors and patients.

The British Medical Association (BMA) publishes guidelines and can be contacted for advice.

  • BMA members may contact: 0300 123 1233 or British Medical Association Medical Ethics Department BMA House, Tavistock Square, London WC1H 9JP Tel: 020 7383 6286 Email: [email protected].
  • Non-members may contact: British Medical Association Public Affairs Department BMA House, Tavistock Square, London WC1H 9JP Tel: 020 7387 4499 Email: [email protected]

What if I am sharing PR with the LA?

If a care order has already been made then you share PR with the LA. It is clear that it would be unwise for doctors to feel they need only seek permission from the LA, particularly if the proposed treatment is significant. Efforts should always be made to reach agreement, particularly if the proposed medical intervention is not going to involve significant impact on a child’s bodily integrity.

If you don’t feel able to agree to relatively simply medical procedures or assessments, that may raise question marks in the minds of the professionals about how you are discharging your parental responsibility. It is not difficult to see how such situations can spiral out of control (as in the case of Ashya King above) with parents being very suspicious of doctors and vice versa. As ever, good communication is the key; if you are worried about a particular procedure, say so and say why. Ask for further explanation and discussion.

If agreement just isn’t possible, again applying to court may be the only option. The LA cannot simply make any decision they like even when they do share PR under a care order. They can only act when it is ‘necessary’ to safeguard or promote the child’s welfare. See section 33(4) of the Children Act 1989 and considerations of proportionality under Article 8 of the ECHR. The LA also remain under a duty to consult parents before making any serious decisions about a child who is subject to a care order. 

See this case from 2013 where Kingston on Hull City Council were subject to a successful judicial review of their failure to consult parents. The Judge made clear at paragraph 58 his views about the duty to consult:

  • I have made it clear that there is a duty upon a local authority to consult with all affected parties before a decision is reached upon important aspects of the life of a child whilst an ICO is in force. I have been shown the guidance issued by HM Government to local authorities in 2010 [The Children Act 1989 Guidance and Regulations] where there is valuable material available to social workers about how to approach their difficult task in this regard. Paragraph 1.5 provides (inter alia): “Parents should be expected and enabled to retain their responsibilities and to remain closely involved as is consistent with their child’s welfare, even if that child cannot live at home either temporarily or permanently.” … “If children are to live apart form their family, both they and their parents should be given adequate information and helped to consider alternatives and contribute to the making of an informed choice about the most appropriate form of care.”

Principles of law when there is disagreement about the treatment a child needs.

If it is not possible to reach agreement, the court will have to make a decision about what kind of treatment/intervention is in the best interests of the child. Baker J set out the relevant principles to be applied in such cases (see para 29 of his judgment in September 2014):

  • The child’s welfare is the most important issue before the court ;
  • The court must also have regard to the child’s rights under the ECHR; most pertinently the right to life under Article 2 and the right to respect for family and private life under Article 8;
  • Responsibility for making decisions about children rests with the parents and the state should only interfere if the child is suffering or at risk of suffering significant harm.

For consideration of how the court should approach a case when doctors wish to stop giving life sustaining treatment to a seriously ill child, see the case of Kirklees Council v RE  [2104].

Further reading

Children of Jehovah’s Witnesses and adolescent Jehovah’s Witnesses: what are their rights? BMJ 2005

Girl of 13 allowed to refuse heart transplant – The Independent November 2008

Parents with child in care cannot object to the LA deciding to immunise their child, using section 33 of the Children Act – The Guardian April 2020

In Who’s best interests? The transitioning of preschool children – Sarah Phillimore October 2019

Transgender Children: limits on consent to permanent interventions Heather Brunskell-Evans January 2020

GIDS deploys three Gillick Competence criteria to assess whether a child under 16 can give informed consent.

The first criterion is that the child has the mental capacity to fully understand the likely consequences, both positive and negative, of her decision-making. However, she or he is not psychologically competent to assess the likely consequences of a complex and contested medical area whose future ramifications will have little or no meaning. Not only are all the long-term impacts of hormone therapy unknown to clinicians themselves, a child will have little or no cognisance of a future in which she or he will become a medical patient for life, may come to regret lost fertility (including, for example, the lack of breasts, ovaries and uterus), and the lack of organs for sexual pleasure.

Moreover, the information given by GIDS to children is simply not factual. For example, children are told that hormone blockers will make them feel less worried about growing up in ‘the wrong body’ and will give them more time and space to reflect. This reassurance is contradicted by GIDS’ own recognition that research evidence demonstrates that after one year young people report an increase in body dissatisfaction; rather than giving the opportunity to change their minds children almost invariably proceed to cross-sex hormones.

Care and Supervision Orders

When can the court make these orders? And what is the impact?

Care and Supervision orders were created by Part IV of the Children Act 1989. See also Chapter 3 of the Guidance from the Department of Eduction.

On the application of the LA or the NSPCC the court can make a care or supervision order only if:

  • the court has jurisdiction to make an order AND
  • if section 31 of the CA is met. i.e. the child has suffered or is at risk of significant harm.

The significant harm can occur because of bad parenting (which is likely to be seen as the parents’ ‘fault’) or because the child is beyond parental control – this may be less likely to be seen as the ‘fault’ of the parents. But regardless of questions of who or what is to ‘blame’ – there must be a link between the parenting/lack of control and the significant harm.

If you are worried that your child is going to be taken away at an ‘interim hearing’ i.e. before the final care order is made, read more about this here.

Does the court have the power to make a care order about my child?

The court only has power (‘jurisdiction’) to make a care or supervision order:

  • if the threshold criteria are met. This is dealt with in another post.
  • If the child has links to England and Wales – usually the child needs to have a settled life here (‘habitual residence’). As a general rule, courts in one country do not usually have the power to make orders about people who are citizens of other countries.

This issue about jurisdiction based on ‘habitual residence’ began to cause problems as increasing numbers of people have travelled to England from other countries but objected to  the English court making orders about their children. There wasn’t anything clearly set out in any statute to help the judges decide when and how to exercise their jurisdiction over children whose parents had strong ties to other countries.

Sir James Munby set out some useful principles in these two cases: Re F (A Child) [2014] EWCA Civ 789 and Re E (Brussels II Revised: Vienna Convention: Reporting Restrictions) [2014] EWHC 6 (Fam), [2014] FLR.

He noted that Regulation Brussels II revised (BIIR) applied to determine the jurisdiction of the English court in care proceedings, whether or not the other country is a Member State of the European Union: see A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UKSC 60, [2014] AC 1, para 30, and In re L (A Child: Habitual Residence) (Reunite International Child Abduction Centre intervening) [2013] UKSC 75, [2013] 3 WLR 1597, para 18.

The basic principle set out in Article 8(1) of BIIR is that the court’s power to make care or supervision orders depends on ‘habitual residence’ NOT just physical presence.

‘Habitual residence’ is meant to be a simple matter of fact and you ask yourself to what extent the child is integrated into his or her local environment – do they go to school for e.g. ?

The court must deal with this matter at the outset and should set out clearly the basis for saying it has power to make orders. If it is necessary to make decisions before there is time for proper investigation and determination, the following suggested recital should be used in the court order: “Upon it provisionally appearing that the child is habitually resident…”.

Care and Supervision Orders – some general points

  • No care or supervision order can be made once child is 17 years old (or sixteen if married!)
  • If the LA want a care order the court can decide to make a supervision order or no order at all. This is due to the principle of ‘least intervention’; the court must be careful that the decisions it makes are proportionate to the harm in question. Proportionality is a key concept in Family Law – see Article 8 of the ECHR. If the child could be kept safe by a less serious order, such as a supervision order or child arrangements order, then that is the order that should be made. See further our post about Article 8 and proportionality.
  • A care order gives the LA parental responsibility for a child; a supervision order does not. See discussion below.
  • If a care order is made, if the child is subject to any other orders – such as any order under section 8 of the Children Act 1989, a supervision order, education supervision order or school attendance order – those orders will be discharged. Also if the child was a ward of court, the care order will bring wardship to an end.
  • If the child is subject to a care order and the court makes a special guardianship order or a child arrangements order under section 8 of the Children Act 1989, dealing with the living arrangements of a child, that will bring the care order to an end. If the court makes a placement order, the care order is suspended not discharged and will revive if the placement order is revoked.

Care Plans

Under section 31A of the Children Act 1989 the court cannot make a care order unless the LA have provided a care plan for the child. Section 15 of the Children and Families Act 2014 has amended the law with regard to care plans to say that the court need only  examine that part of the plan which relates to permanency for the child – i.e. what the LA thinks should happen to the child in the future and where he or she should live.

What if the court thinks there should be a care order and the LA doesn’t?

This situation arose in W (A Child) v Neath Port Talbot County Borough Council [2013] EWCA Civ 1227 where both the mother AND the LA did not agree with the court’s assessment that a care order was required. The Court of Appeal confirmed that the court does have power to make an order even if the LA didn’t want it. Deciding what order is needed is a value judgment about the degree of intervention required by the state to meet the risk.

The starting point is the court’s findings of fact and then moving on to make a decision about a child’s welfare. That latter ‘value judgment’ is for the court to make NOT the LA.  The LA may not refuse to accept a court’s evaluation of risk. If the LA refuses to amend its care plan, the Court of Appeal suggests that this could be challenged by way of judicial review. Parliament has given the power to decide what, if any, order to make to a judge and there would be no purpose in this if a local authority could simply ignore what the judge has decided.

However I am not aware of any published case where a LA has been subject to JR for failing to accept a court’s welfare evaluation – is what happens in practice is that the LA will ‘blink first’ ?

What happens in the LA doesn’t want to carry on with proceedings?

Mr Justice MacDonald summarised the approach to be taken in the case of A Local Authority v X, Y and Z (Permission to withdraw) [2017] EWHC 3741. It’s only possible to withdraw proceedings with the court’s permission. Cases will be one of two types – those where the LA would clearly NOT have been able to find the threshold crossed; in these cases the court ought to allow them to withdraw. But in cases where the LA could satisfy the threshold, the court needs to think about it more carefully and look at the 12 factors set out in A County Council v DP, RS, BS (By the Children’s Guardian) [2005] EWHC 1593:

  • the interests of the child – which are relevant but not paramount
  • the time the investigation would take
  • the likely cost to public funds
  • the evidential result
  • the necessity of the investigation
  • the relevance of the potential result to the future care plans for the child
  • the impact of fact finding process on other parties
  • the prospects of a fair trial
  • the justice of the case.

Consequences of a care order

Impact on parental responsibility

Parental responsibility (‘PR’) is defined under section 3 of the Children Act 1989 as “all the rights, duties, powers, responsibilities and authority, which by law a parent has in relation to the child and his/her property.”

In a nutshell this means that people with PR have a right to know and make decisions about serious issues in the child’s life, such as where they live or go to school or what medical treatment they need.

Mothers automatically have PR for their children; fathers will have it automatically if they are married to the mother or – from 2003 – if their name appears on the birth certificate. If the parents were not married, the father is not on the birth certificate and the parents cannot agree about PR, the father will need to apply to the court for an order awarding him PR.

The key distinction between care and supervision orders is found under section 33(3) of the Children Act. Only a care order can gives the LA parental responsibility and the power to decide how any one else can exercise their parental responsibility. It is often said that a care order allows the LA to ‘share’ parental responsibility but the more realistic description is that the LA is now in the driving seat when it comes to making decisions about the child. 

The LA can control parents’ exercise of their parental responsibility when ‘necessary’.

However, under section 33(4) the LA can only use their powers to control other people’s parental responsibility if to do so is necessary to safeguard or promote the child’s welfare. Together with the considerations of Article 8 of the ECHR and the need to act proportionally, the LA will need to think seriously about whether or not what it proposes is ‘necessary’.

For example, see our post on what happened when the LA wanted to remove a child who was placed at home under a care order. The court decided that this had not been ‘necessary’ and that the first judge had the power to stop them by way of an injunction under the Human Rights Act 1998.

Further, under section 33(6) the LA is NOT entitled to change the child’s religious persuasion and NO ONE is allowed to call the child by a different surname or take him out of the country for more than a month unless everyone with parental responsibility agrees or the court orders.

Duty to consult

It is important to note that, even though under a care order the LA is in the ‘driving seat’, they cannot ignore the other passengers – the LA MUST consult with and inform other PR holders about important decisions they make for the child and they have rightly been subject to serious criticism when they have failed to do this.

See this case from 2013 where Kingston on Hull City Council were subject to a successful judicial review of their failure to consult parents.

The Judge made clear at paragraph 58 his views about the duty to consult:

I have made it clear that there is a duty upon a local authority to consult with all affected parties before a decision is reached upon important aspects of the life of a child whilst an ICO is in force. I have been shown the guidance issued by HM Government to local authorities in 2010 [The Children Act 1989 Guidance and Regulations] where there is valuable material available to social workers about how to approach their difficult task in this regard.

Paragraph 1.5 provides (inter alia):
“Parents should be expected and enabled to retain their responsibilities and to remain closely involved as is consistent with their child’s welfare, even if that child cannot live at home either temporarily or permanently.” …

“If children are to live apart form their family, both they and their parents should be given adequate information and helped to consider alternatives and contribute to the making of an informed choice about the most appropriate form of care.”
Whilst it is not spelled-out quite as starkly as perhaps it should, there is contained therein a plain message that a local authority must consult and, in my judgment, that is even more crucial during the interim phase of proceedings when final decisions as to the threshold criteria and outcome have not been made by a court.

The issue about how the LA needs to consult will depend on the facts of each case, but should usually include the parents and the guardian, if one is appointed and any other family member who has a close link to the children, such as a grandparent who may be caring for the child or otherwise closely concerned.

The LA will then have to decide how much weight to attach to the input of those it consults and again, this will depend on the facts of each case.  But the Judge was clear:

The “others” who need to be consulted may have a valuable contribution that might alter the proposal of the local authority. It does not mean the parents and other parties must concur with the proposal before it can be implemented. There can be no veto or casting vote. Equally, the parents and other parties are not mere vassals to whom information is given and nothing more.

I don’t agree with what the LA wants to do

If, after consultation, you do not agree with the LA’s proposed plan of action, you may need to consider applying for an injunction to prevent them from acting under the Human Rights Act. We discuss this remedy here.

Impact of care order on contact with children

There is a helpful article from Family Law which discusses applications for contact with a child in care. See also the Care Planning, Placement and Case Review Regulations 2010.

Section 34 states that the LA ‘shall’ allow the child ‘reasonable contact’ with his parents or guardian, a step-parent who has parental responsibility or anyone who had a residence order immediately before the care order was made. Any other person who wants contact will have to apply to the court for leave to make an application and the court may make ‘such an order as it considers appropriate’.

Contact with babies in care proceedings

It used to be thought that when babies were taken into care, that parents ought to have as much contact as possible, and 5 times a week would represent a minimum. However, more recently,  the courts have become aware of research which showed that frequent contact for babies in care was often harmful to  them as it could mean that they were subject to a lot of travelling with unfamiliar people and it had a negative impact on their ability to settle in foster placements. So it is likely that contact with a baby will be set at between 2-3 times a week and probably less for older children as they are likely to have a number of commitments such as school attendance which may impact upon frequent contact.

If you want to know more about the issue of contact with babies in care, here is a transcript of a debate on 8th December 2010, organised by the Family Justice Council ,which includes contributions from the President of the Family Division. There is a useful article here from Jenny Kenrick, a child psychotherapist, which looks  further at the practical issues around contact with babies in care proceedings.

The LA want to stop contact

The LA cannot refuse contact unless for an urgent reason and then only for 7 days. If the LA wants to stop contact and you don’t agree,  it will have to ask the court to order this under section 34(4).

If the LA do want to stop your contact, then under Regulation 8 of the Care Planning, Placement and Case Review Regulations of 2010, they must give written notice of:

(a) the responsible authority’s decision,
(b) the date of the decision,
(c) the reasons for the decision,
(d) the duration of the decision (if applicable), and
(e)remedies available in case of dissatisfaction.

Care order with child remaining at home

The court has recently given guidance about a care order being made with the child remaining at home JW (Child at Home under Care Order) [2023] EWCA Civ 944.

An English local authority may only allow a child in care to live with a parent,
person with parental responsibility, or the previous holder of a ‘live with’ child
arrangements order (made under CA 1989, s 8), in accordance with the Care Planning,
Placement and Case Review (England) Regulations 2010 [‘CPPCR(E)R 2010’]. Under regulation 20, the local authority must provide such support services to the parent as appear to them to be necessary to safeguard and promote the child’s welfare and must under regulation 28 arrange visits to the child as necessary.

Since the early days following the implementation of CA 1989 in 1991 the practice of
making a final care order on the basis that the child will be living at home was endorsed
by the higher courts. The key question is the proportionality of the order. The court summarised the relevant law at para 28 of the judgment

  1. making a care order with a subject child placed at home in the care of their
    parent(s) is plainly permissible within the statutory scheme and express
    provision is made for such circumstances in CA 1989, s 22C and in the
    placement regulations;
  2. the early post-CA 1989 authorities established that a care plan for placement at
    home was an appropriate outcome where the facts justified it, without the need
    for exceptional circumstances;
  3. the analysis of Hale J/LJ in Oxfordshire and in Re O laid particular weight upon
    the need for the authority to have power to remove the child instantly if
    circumstances required it, or to plan for the child to be placed outside the family;
  4. since Oxfordshire and Re O, the High Court decision in Re DE, containing
    guidance endorsed by the President, has been widely accepted so that, in all but
    a true emergency, the local authority power to remove a child from their home
    under a care order should not be exercised without giving parents an opportunity
    to bring the issue before a court;
  5. the difference concerning removal of a child from home either under a care order
    or where there is no care order is now largely procedural. In all but the most
    urgent cases, the decision on removal will ultimately be taken within the
    umbrella of court proceedings, rather than administratively within a local
    authority;
  6. sharing of parental responsibility by the local authority with parents is an
    important element, but, as Hale J/LJ stressed, the fact that considerable help and
    advice may be needed over a prolonged period is not a reason, in itself, for
    making a care order;
  7.  it is wrong to make a care order in order to impose duties on a local authority or
    use it to encourage them to perform the duties that they have to a child in need;
  8. the protection of the child is the decisive factor, but proportionality is key when
    making the choice between a care and supervision order for a child who is placed
    at home;
  9. supervision orders should be made to work, where that is the proportionate form
    of order to make.

Supervision Orders

You will find supervision orders at section 35 of the Children Act 1989.

A supervision order does NOT give the LA parental responsibility for your child but allows them to appoint a ‘supervisor’ who will ‘advise, assist and befriend the supervised child’ and take whatever steps are necessary to make the supervision order work. 

Supervision orders are normally made for six months or 12 months at time. They can be a good way of dealing with concerns which are worrying but not so serious that a care order is required. It is a way of keeping an eye on a situation and monitoring how well things are going.

The court can make a supervision order even if the LA is asking for a care order, if the court thinks a supervision order is the best order to make.

The Public Law Working Group produced a report and ‘Best Practice Guidance’ (BPG) around Supervision orders in April 2023. It’s key recommendations were:

  • Each local authority’s children’s services department implements the BPG.
  • Supervision orders are only made when all of the matters set out in the supervision order template within the BPG have been considered and addressed.
  • Each children’s services department adopts and completes the self-audit questions within the BPG in respect of every supervision order made in its favour.
  • Each children’s services department considers developing good practice tools to embed the BPG (e.g., Essex Children’s Social Care’s ‘thinking tool’).
  • In light of the report and recommendations of the Independent Care Review commissioned by HM Government, HM Government to commit to provide the necessary resources to local authorities to enable them to adopt and implement the BPG to the fullest and most effective extent possible.

The report also makes four proposals for long-term change. These recommendations will require legislative changes to be implemented and/or the approval of additional public spending by the Government.

  • Amending the Children Act 1989 to provide a statutory basis for supervision support plans (akin to s 31A, CA 1989 in respect of care plans). MoJ and DfE participation in the working group should not be taken as government endorsement of all the recommendations in this report or the BPG.
  • Placing local authorities under a statutory duty to provide support and services under a supervision order.
  • Amending statutory guidance to reflect the recommendations in this report and the BPG.
  • HM Government undertaking or funding an external body to identify all supervision orders made by the Family Court to support family reunification and collect data on (a) the supervision plan at the end of proceedings, (b) the implementation of the plan during the life of the supervision order and (c) change of placement or return to court for the children and their parents up to two years after the end of the supervision order