Welcome to the Editor's Blog

 

The Editor’s Blog is written by Rodney Noon, the incumbent editor of Seen and Heard.  Rodney is a Solicitor-Advocate and has been a member of the Law Society’s Children Panel since 1987.  He has extensive experience of acting for parents, children and local authorities in Children Act proceedings.  He has lectured nationally and written extensively on family law and other issues. The views expressed in this blog are the editor’s own and should not be assumed to necessarily reflect the views of Nagalro.

 

Families Need Fathers Parental Alienation Conference:

Some reflections

I do not usually have to cross a picket line to attend a conference, so that was a something new. Families Need Fathers had organised a conference about parental alienation, with speakers including Anthony Douglas from Cafcass and Chris Cloke from NSPCC. Legal Action for Women and Women Against Rape had written an open letter to Cafcass and NSPCC urging them not to attend a ‘conference that gives credence to misogyny’ and were staging a protest outside the venue.
 
I spoke to two of the protesters. Lisa Langstaft from Women Against Rape told me that the protest was not about the subject matter of the conference and that they did not dispute (or really know much about) parental alienation. The object of the protest was Families Need Fathers. They were also protesting about Cafcass and NSPCC for speaking at one of their events because, the protesters contend, Families Need Fathers deny domestic violence. Their open letter sets out their allegations very clearly. If true they are very serious, including incitement to murder mothers who are obstructing contact with children.
 
Nina Lopez from Legal Action for Women told me ‘Any father who denies the extent of domestic violence cannot be a caring father’. Whether you accept that statement or not, what could not be denied, was the honesty of these ladies’ beliefs. They were courteous and made no attempt to intimidate or to stop anyone attending the conference.
 
For my part, I started the day with divided feelings. I have argued enough cases against violent and abusive parents, who should never be allowed near a puppy, let alone a child, to know that the abuse of which the protesters complained is very real and that real parents and real children have died violent deaths. On the other hand, I have been involved in tragic and heart-breaking cases where perfectly decent parents (of both sexes) have been subjected to rejection by their children, at the instigation (deliberate or not) of the other parent. In the real world, the villain is more often sad than bad, and rarely helps us with identification, by wearing a black Stetson.
 
Should NSPCC and Cafcass have attended? Even if all the allegations against FnF were right, I think that they should. The conference speakers were all professionals from the law, social work, psychiatry and psychology. The delegates were, for the most part parents. Mainly, but not exclusively fathers, who often felt that the Family Court was institutionally biased against them. There is an urgent need for everyone within the family justice system to engage with people who feel excluded. If some fathers believe that the Family Court is against them from the start, are we not obliged to try and engage with them?
 
I also think it should be said, that the 2013 reforms to family legal aid have worked to increase many parents’ sense of isolation and bias against them. A parent who has made allegations of abuse to doctors, or the police will be likely to have legal aid and access to lawyers. Those accused, have no such support and can be forgiven for thinking that they have been convicted without trial. How can the state reconcile the right to a fair trial, with a system which ensures inequality of arms? It is important that children are protected from those who may cause them harm but that guilt must be a matter of evidence and not presumption. Any other approach harms children who may lose a parent who had much to contribute to their lives. A litigant in person father, raising a question with Judge Wildblood, from the floor, explained that he was dyslexic and had been to court 37 times about seeing his children. Leaving aside the question of fairness to him, how can this be fair to the children whose lives must be dominated by an unending feud, stress and uncertainty?
 
What did I learn from the day? We heard compelling descriptions of alienation from Dr Sue Whitcombe, a Chartered Psychologist and Dr Hamish Cameron, a child and adolescent psychiatrist.
 
Parental alienation has no class or gender base. Because the majority of primary carers happen to be mothers they feature in more cases as the alienating than the alienated parent. Dr Cameron was quite explicit, saying ‘men do it too’. He has likewise seen instances where the non-resident parent has, deliberately, or otherwise, sought to alienate a child from the resident parent.
 
Dr Whitcombe explained that children are hard-wired to attach to their parents; even to the neglectful and abusive ones. With cases of alienation she explained, you will see an absolute level of estrangement which is rare even after abuse. This is linked with a lack of any emotional context for the things which the child is saying are the reasons they do not wish to see the other parent. The reasons given are sometimes bizarre, sometimes trivial, but they arise as a defence mechanism for a child who is trying to protect himself from an unbearable level of adult conflict, with which they simply cannot cope. Anthony Douglas, who told us that he had, in his childhood experienced alienating behaviour from one of his adoptive parents, warned against professionals being too eager to dismantle this defensive shield ‘unless you are confident that you can replace it with something better’.
 
Adopting easy stereotypes would lead us to label the alienator as the bad, manipulating parent and the alienated parent as the aggrieved innocent. Dr Whitcombe and HHJ Stephen Wildblood QC urged compassion and understanding. Deliberate plotting is a rarity. More often we are seeing a reaction to fear and insecurity which is often inter-generational, so that the alienated child, inculcated with a black/white, binary view of the world is more likely to have difficulties in their adult relationships and to themselves alienate children from their other parent. I think that Emily Bronte had it right all along, when she showed, in Wuthering Heights, how the abused becomes the abuser, cascading the harm from one generation to the next.
 
So, we have a problem and we cannot just throw up our hands and say it is insoluble. It damages the lives of both parents and the child and that damage can endure throughout the child’s life and blight the lives of generations to come. We heard of lives destroyed and parents driven to suicide. Dr Cameron said that we only see what we know. Hence, there is still a problem of parental alienation being unseen and unrecognised by social work professionals. Although Anthony Douglas was very clear about the reality and pernicious effects of a child being alienated from one parent, a parent questioning him from the floor recounted being told by a Cafcass officer that parental alienation did not exist. Dr Whitcombe told us that Cafcass Cymru still resist the use of the term. Whilst there are Cafcass training webinars on the subject, a FoI request made by one of the delegates had revealed that from 1400 Cafcass staff, the two webinars had been watched by 22 and 32 members.
 
According to Anthony Douglas, Cafcass’ new High Conflict Pathway will include compulsory training for practitioners in these matters. He reflected how, for the child, it was ‘a double whammy’ where one parent was using the child to meet their own needs, whilst the child was being kept from the other parent who could meet the child’s needs.
 
Judge Wildblood had a clear approach, stating that the first thing which is needed is an early factual determination. Is this parental alienation, or has the parent alienated themselves from the child by their unacceptable conduct? In my experience, Courts which are overburdened with work and short of resources may be resistant to this approach, but, in the longer run, it will help the children and stop cases dragging on for years. Once this has been resolved there should be a clear judgment which can be used as the basis for getting help and support where it is needed and (if necessary) compelling a local authority to act to protect the child from further harm.
 
I suppose that it is to be welcomed that we are now beginning to understand the phenomenon of parental alienation, how it arises and (just sometimes) how it can be undone. None of this, however, prevented the day from being a sad focus on our almost infinite capacity to mutilate and destroy those we are supposed to love and care for.

 

‘I am more than how you see me…’

Impressions from the Voice of the Child Conference 2017

 
On 27 July 2017, I had the privilege of attending the Family Justice Young People’s Board, Voice of the Child Conference 2017. For those unfamiliar with this body, it operates under a Cafcass ‘umbrella’, but is run by children and young people who have been through the family courts in either a private or public law context and can offer a unique feedback on what the most important individuals in the entire process feel about the service they received from us, the adults and professionals who are supposed to know best. It was both an inspiring and a chastening experience.
 
The Minister of State for Courts and Justice, Dominic Raab MP had been invited to attend and to speak. He did not, pleading other, unspecified, commitments. In his place, he sent a civil servant, Dr Elizabeth Gibby, who is the Deputy Director of the Family Justice Policy Division with a statement to read out on his behalf. Dr Gibby had the decency to appear thoroughly embarrassed by her political master’s behaviour and got through reading his completely forgettable message as quickly a she could, before moving to her own views, which showed considerably more insight and imagination. What was disappointing, was to learn that work on the much-awaited Practice Direction on children’s evidence in the Family Court will not even begin until after October 2017, when the Practice Direction on vulnerable witnesses will be brought out after a three-year gestation.
 
It is impossible to know why Mr Raab was not able to attend and why no other elected politician from the Ministry of Justice was in a position (or inclined) to attend in his place. The clear impression however, was that if you do not vote you do not matter. If it was deliberate, it is unforgivable; if unintended and accidental, it was, at best, inept.
 
The theme of the conference, which was organised and run by the children and young people themselves was ‘Diversity and Inclusion’, but, for me at least there were wider and more profound messages. Rather than providing a factual account of the speakers and events, what follows is a distillation of the lasting impressions and clearest messages to emerge in the course of the day.
 
The first thing to strike me and inspire, was that this was an event where the children were doing, rather than having things done to them. They were standing on the podium, moving people from one event to the next and setting the agenda, rather than being the passive subjects of the actions and plans of others. They were doing it well too. These were young people as multi-faceted individuals like the rest of us, not just two-dimensional figures in an academic problem, or chess pieces, to be moved across the board in an attack on the other player and sacrificed for a tactical advantage.
 
In a brave and insightful section called ‘Do You See Me?’ we were faced with pictures of young children and the formulaic descriptions given to them in court reports. The subjects (FJYPB Board Members) then revealed themselves and what they had gone on to do and become. ‘I am more than how you see me’ they said. Just how much more was plain for all to see. They also reminded us that what the professionals do and say continues to affect their lives, for good or ill, long after we have left the scene and moved on to new cases. ‘Did you see their potential?’ the young people asked us in relation to the photographs. ‘Don’t let your perception limit their futures’ they warned. The room was silent, save for the sound of several hundred pennies, suddenly dropping.
 
The inconvenient truth is that children are not just assets to be transferred, shared or organised. A very brave and eloquent young person recalled;
‘They were talking about me like I had never existed; like I didn’t matter. Things were arranged without me knowing. I felt like I was worthless’.
 
Family cases, whether in public or private law are messy and the adults alone can be hard to manage. It is all too easy and tempting to side-line the child on the basis that they will do as they are told, but at what cost? None of us would ever deliberately want to make a child feel worthless, but by trying to, as we see it, protect them from adult issues, is that what we sometimes do? Could we do better? No one should be left feeling worthless, even by accident.
 
The other clear message, was that we often do not spend enough time with the children. It should not be just about going through assessment questions so that boxes can be ticked. It is about building a human relationship and an understanding about who this person, holistically, is; not just how they fit into the problem we are required to solve. We were told that 80 per cent of the children spoken to by FJYPB wanted to communicate with court professionals face to face. Such a wish is far from unreasonable, but sits awkwardly with recent suggestions that children’s guardians do not, perhaps, always need to meet the child. Professionals in Children Act proceedings have ever diminishing amounts of time available to them to carry out their tasks and obtain the required information. The Conference however reminded us of the need to retain some common courtesy and humanity. Accepting that we have to ask some very personal questions, we were still challenged, ‘would you be willing to answer a question put in that way?’
 
Above all else, the thing which confronted me again and again through the day was, ‘How would I feel if I was treated like that?’ We do not ask it often enough and when we do, the question often has uncomfortable answers. In a world of assessment tools and checklists, I would suggest it is a touchstone from which we should refuse to be parted.

 

August 2017

 

A Woman, a Dog and a Walnut Tree…

The old proverb would tell us that ‘…the more you beat them, the better they be’.  Similar verse advises parents to, ‘speak roughly to your little boy and beat him when he sneezes’, but what do we really know about corporal punishment?  Is it true, as many say, that it ‘never did me any harm’?
 
Scotland has legislated to prohibit corporal punishment by parents.  The position in the rest of the UK is not as absolute.  It was not until 1986 that such punishment was outlawed in state schools.  Private schools hung on to their canes until 1998.  Section 58 of the Children Act 2004 removed the defence of ‘reasonable chastisement’ from parents charged with offences under sections 18 and 20 of the Offences Against the Person Act 1861 (wounding and causing grievous bodily harm), assault occasioning actual bodily harm under s47 of the Act, or an offence of child cruelty under s1 Children and Young Persons Act 1933.  So, smacking your children remains legal, provided it does not cause injury or leave a bruise.   The paradox, that the same assault on an adult would be prosecuted as a common assault, remains unresolved.
 
As a lawyer, the temptation is to approach the issue through the prism of the child’s rights, but I think that there is a more direct, pragmatic approach, which leaves no room for further dispute.  As long as it can be argued that corporal punishment achieves its objective, then it can be said that the ends justify the means and that the long-term benefits to the child of growing into a disciplined adult, able to take their place successfully in society, outweigh the short-term costs.  However, what if it were demonstrated that the benefits are illusory and the harm, lasting and serious? The punishment is then reduced to an act of domestic abuse by an adult on someone weaker than them and quite unable to defend themselves.  It is no more than the adult having a violent tantrum, of the kind they should have out-grown years ago.
 
My life is measured out in dogs.  Over a half century, I am quite sure that they have taught me far more than I have managed to impart to them in the way of training, but I start here, because there is a parallel debate in animal training between those who rely solely on rewards-based training and those who advocate ‘aversives’ such as shock collars, water sprays, ear biting and alpha-rolls.  Since humans and dogs have evolved together over many thousands of years, it is reasonable to think that we may have developed similar behaviours and reactions.
 
What the work of animal scientists, such as Dr Ian Dunbar and John Bradshaw, have demonstrated, is that dogs are poor at working out cause and effect in the behaviour of others.  If the dog is physically punished for doing something, that punishment can only be effective if the animal is able to make the causal link between that specific act and the unpleasant outcome.  If the link is not made, then the dog becomes increasingly anxious, as they are not able to predict whether the owner will behave kindly or aggressively.  This leads to a dog who is ‘hand-shy’, who will cower when a hand is extended because it cannot tell whether it is to be hit or stroked. 
 
The owner returns home to find that the dog has shredded the post.  The owner drags the dog to the ‘scene of the crime’ and spanks it.  The dog does not make the link with the post.  He had defended the pack’s den and destroyed an intruder, but that was hours ago.  He thinks, ‘I don’t know what to make of this person.  Sometimes he is kind when he comes in, sometimes I get attacked.  Stay out of his way and be careful in future’.
 
Our dogs crave attention and reward.  Perhaps they are uncomfortably close to us in this respect? Behaviour (good or bad) which generates this will be repeated.  Behaviour which does not generate a reward is a waste of time and effort and so is discontinued.
 
The point of the digression is this.  The lessons from animal and, particularly, dog training are directly transferable to people.  Children crave attention and even if the attention is a thrashing, it is still attention.  If it is possible to train a cocker spaniel (possibly the most self-willed, infuriating and utterly wonderful breed ever to set foot on a moor) to win field trial championships, or locate drugs in a pile of smelly socks, by using no more than biscuits, praise and a tennis ball, surely the same can be applied to our children?
 
Two pieces of research from North America raise strong evidence that physical chastisement of children is both ineffective, counter-productive and ultimately damaging.  ‘Spanking and Child Outcomes: Old controversies and new meta-analyses’, by Elizabeth Gershoff and Andrew Grogan-Taylor, was published in the Journal of Family Psychology in June 2016.  Here, the researchers looked at five decades of studies, involving over 160,000 children.  They were not looking at children beaten with fists or sticks.  The studies looked at the effects of ‘an open-handed hit on the behind or extremities’.  The clear conclusion from a half century of studies, was that the more children are smacked/spanked, the more likely they are to defy their parents, which is, of course the very opposite of the result being sought.  There was no evidence that smacking was associated with either immediate or long-term compliance.  It was a total waste of time and effort, if what was sought was improved behaviour from the child. 
 
The researchers also found strong evidence for what I have come to refer to as the ‘Heathcliffe Syndrome’, where the victim of the abuse grows up to inflict the same abuse they suffered.  Those who had received physical chastisement as children, were more likely to support corporal punishment of their own children, creating a self-perpetuating cycle of abuse.
 
A paper published this year in Child Abuse and Neglect by Tracie Afifi et al looks at the impact of physical chastisement on adult health outcomes, particularly mental health.  Here, the researchers start from the established position that Adverse Childhood Experiences (ACEs) such as child abuse are linked to poor health outcomes in adulthood.  They examine whether the link exists between children spanked/smacked and the same poor adult health.
 
The paper notes at the outset that ‘there are no studies showing that spanking enhances children’s development or physical or mental health’.  It then goes on to consider whether even in the absence of positive effects there are harmful ones. 
 
The chief finding is that smacking children increases the risk of suicide attempts, moderate to heavy drinking and street drug use in adulthood in just the same way as physical and emotional abuse would do.  Even when the results of the survey, which involved over 8,000 respondents, are adjusted to take out the impact of any physical and emotional abuse which the person may also have suffered, the impact of repeated physical punishment remains.
 
The authors consider that smacking and physical abuse should be thought of as existing ‘along a continuum of violence against children rather than as separate constructs’.  They conclude;
 
‘The relationship between reports of being spanked in childhood and mental and behavioural health impairment in adulthood are similar in direction to the associations between Physical/Emotional abuse and adult suicide attempts, moderate to heavy drinking and street drug use.  Therefore, these results provide strong support for consideration of spanking as an ACE.’

 

For as long as our legislation continues to give permission to parents to inflict long-term harm on their children, whatever the provocation, the cycle of violence in the home will continue.  What is the point of Practice Directions to deal with domestic abuse and contact, when our parliament says that that violence, against small, defenceless children, by adults is acceptable?
 
June 2017
 

‘Do as I Say – Not as I Do’ –
Hypocrisy and Double Standards in Young Offender Institutes

 
If the parents of a child, by way of punishment for bad behaviour, confined that child to a ‘dark, dirty, poorly lit and inadequately ventilated’ room and only allowed the child out for only 30 minutes in every 24 hours, keeping this up for almost 3 months, the local authority would immediately apply to the court for a care order to remove them from their parents’ care. To obtain such an order, the local authority would be required to show that the child was suffering, or at risk of suffering, ‘significant harm’ because the standard of care given by the parents was not what it would be reasonable to expect a parent to give to him. It is almost inconceivable that a court would not find this threshold to have been crossed.
 
The circumstances are so shockingly extreme that it would be likely that the police would be involved. The parents would be arrested, interviewed and in all likelihood, prosecuted. Prison sentences would be a probable outcome.
 
In those circumstances, the state says that it has a responsibility to protect children and to punish those who mistreat them.
 
Between 30 March and 12 April 2016, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (‘CPT’) visited a number of penal institutions in the UK, including Cookham Wood Young Offender Institute, near Rochester in Kent. The CPT is part of the Council of Europe, which, readers may recollect from an earlier blog, is the body responsible for upholding the European Convention on Human Rights. At the time of the CPT visit, there were 152 young people aged between 15 and 17 years detained there, against an operational capacity of 196.
 
What the CPT found was shocking. There were 43 of the juveniles detained who were not, for a variety of reasons, able to take part in education, or any other activities. The majority of these were offered around three and a half hours each day outside their cells to exercise, associate and eat communally. For the rest of the time they were confined to their cells. A significant minority of them however, were on what was described as a ‘separation list’. This was indicated by ‘a vivid pink sign stuck on the cell door that read “do not unlock”’. For them, life consisted of solitary confinement within the cell, save for 30 minutes each day, when they would be allowed out for exercise and to collect their food, which would then be eaten alone in the cell. For 23½ hours each day they were confined alone, with only a television for company. Some were on this list due to repeated violence and others for their own protection.
 
The CPT report describes meeting a 15-year-old who had been held in these conditions for several weeks and had no information about how long he would continue to be held in this way. Another, juvenile was described as spending ’23.5 hours a day lying on his bed, under the covers, blankly looking at a TV screen, talking and meeting no one’. Such conditions, CPT say, are effectively solitary confinement and amount to inhuman and degrading treatment.
 
The use of this regime as a means of controlling violence is ineffective and ultimately, self-defeating. The Commission records that it provokes anxiety and feeds a tendency to lash out at others. One young person interviewed described how the isolation made him so frustrated that, as soon as he was released from his cell, he took out his frustration on the nearest available people, whether staff or other inmates, by attacking them. This of course returned him to the separation list which had caused the violence in the first place and a self-perpetuating cycle of violence, confinement, frustration and further violence was set in motion. To their credit, the staff largely accepted this analysis, but felt they had no other means available to them to manage gang rivalries and other security issues.
 
There is no doubt that violence was endemic in Cookham Wood. On average, there were 44 assaults every month either on other inmates or on staff. Many of the young people detained there were reported to be ‘too scared to leave their cells’.
 
In addition to prisoners who have been placed on a separation list, the Young Offender Institution Rules 2000 (as amended) allow the use of ‘removal from association’ as a disciplinary sanction. Prisoners subject to this punishment at Cookham Wood were usually held in a segregation unit known as the Phoenix Unit. These cells were described by the CPT as ‘dirty, dark, poorly lit and inadequately ventilated.’ Periods of segregation of up to 80 days were recorded. The conditions in this unit were, again, akin to solitary confinement.
 
All the available good, scientific evidence clearly shows that placing adolescents in solitary confinement causes damage to their social, psychological and neurological development, because at their age the brain is still developing. That damage may be irreversible.
 
Many states have banned solitary confinement for under 18’s. Rule 45(1) of the United Nations Standard Minimum Rules on the Treatment of Prisoners, known as the ‘Nelson Mandela Rules’ expressly prohibits the imposition of solitary confinement on juveniles. Rule 67 of the United Nations Rules for the Protection of Juveniles Deprived of their Liberty further provides:
 
‘67.  All disciplinary measures constituting cruel, inhuman or degrading treatment shall be strictly prohibited, including corporal punishment, placement in a dark cell, closed or solitary confinement or any other punishment that may compromise the physical or mental health of the juvenile concerned.  The reduction of diet and the restriction or denial of contact with family members should be prohibited for any purpose.  Labour should always be viewed as an educational tool and a means of promoting the self-respect of the juvenile in preparing him or her for return to the community and should not be imposed as a disciplinary sanction.  No juvenile should be sanctioned more than once for the same disciplinary infraction.  Collective sanctions should be prohibited.’
 
We therefore appear to have a system for controlling young people who are detained by the state which:
 
  1. Would result in the child being removed from parents, by the same state, if carried out in the child’s home;
  2. Would be likely to result in the state applying criminal sanctions if it were used by the child’s parents;
  3. Is ineffective in the short-term, because it produces further violence as soon as the victim is brought out of solitary confinement;
  4. Leaves the subject young person more damaged than they were at the outset and consequently, less able to function after they are released and more likely to cause difficulties and cost to society. It is therefore counter-productive in the longer term.
 
The current approach to young offenders appears to be fundamentally flawed. It makes no economic sense, because it is even less likely that the inmates will ever become productive and contributing members of society. It is legally incomprehensible, as it permits the state to act towards children in ways that citizens would be sanctioned for, without any evidence that it procures a greater good for society as a whole. It, moreover, flies in the face of the country’s international obligations which it voted for in the United Nations. Morally it is repugnant, because it inflicts permanent, serious harm on children, who, in many cases, have already been damaged by their life experiences of parental violence, poverty and substance abuse. It makes it more likely that they will go on to inflict similar harm on their own offspring so that the whole, costly cycle repeats inexorably.
 
I am however conscious that unless I can suggest something better, I should not criticise those who are trying to cope with the situation. Here the CPT offers a better-informed alternative than I could possibly presume to do. At paragraph 83 of their report they state;
 
‘The CPT has visited a number of juvenile establishments in several countries, which are juvenile-centred and based on the concept of small living units. These establishments are composed of small well-staffed units, each comprising a limited number of single rooms (usually no more than ten) as well as a communal area. Juveniles are provided with a range of purposeful activities throughout the day, and staff promote a sense of community within the unit. The CPT considers that this type of centre represents a model for holding detained juveniles in all European countries.’
 
We need to re-think our whole approach to juvenile justice. The current approach simply provides a feeder into already overcrowded and underfunded adult prisons. What if some of those young people could be diverted and our prison population started to fall? What if they were paying taxes and not costing taxes? What if we lived up to our promises?
 
 

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POLICE AND COURTS BILL – PROHIBITING THE CROSS-EXAMINATION OF VICTIMS BY ABUSERS

 
When the Legal Aid, Sentencing and Punishment of Offenders Act was being debated, one of the consequences of the wholesale withdrawal of legal aid in family proceedings which practitioners warned about, was that victims of abuse would find themselves subjected to cross-examination by their tormentors. These warnings, I recollect, were dismissed as trade union self-interest and the legislation rolled on to the statute book.
Now, there is the unmistakable sound of fluttering wings, as the inevitable chickens return home to roost.
 
The direct questioning of the victim by the alleged perpetrator, can no longer happen in criminal cases. Section 34 of the Youth Justice and Criminal Evidence Act 1999 prohibits a defendant, charged with a sexual offence, from cross-examining the complainant and section 35 extends a similar protection to child witnesses in certain (primarily sexual) offences. There is an additional judicial discretion to prohibit the accused from cross-examining particular witnesses in section 36.
Clause 47 of the Bill seeks to put in place a comparable scheme for the Family Court.
 
A new section 31R to be inserted into the Matrimonial and Family Proceedings Act 1984 would prohibit anyone convicted or charged with ‘a specified offence’ from cross-examining the victim or alleged victim of that offence. There is also a prohibition on the victim or alleged victim being required to conduct their own cross-examination of the alleged perpetrator. This second part is particularly welcome. The difficulty with this clause arises when we look for the definition of ‘a specified offence’ within the Bill and find that it will be contained in regulations by the Lord Chancellor to be made under the negative resolution procedure.
 
What this means is that these provisions will apply to whatever wide or narrow range of offences the Lord Chancellor at any particular time may see fit to decree. The list will only receive parliamentary scrutiny if parliamentary time is found for a resolution to annul the regulations to be brought before either House. It would be infinitely better if the Bill set out an irreducible minimum list of offences which would be covered. The adequacy of this could then be debated with the Bill and amended as thought appropriate. There could be no objection to the Lord Chancellor having power by regulation to add offences to that list, perhaps as new ones were created, but we would at least know whether we are being offered a full suit of clothes or a political fig leaf.
 
The Bill goes on to propose a further area of prohibition, whereby, if there is in force, an ‘on-notice protective injunction’ the same prohibitions will apply. The difficulty here is that, rather like a large-gauge fishing net, there are more holes than loops.  Consider the following:
 
  • Rather than applying for an injunction, the victim simply moved away and hoped that this would be an end to it.
  • The victim was subjected to family, cultural or other pressures not to apply to the court for an injunction.
  • The proceedings are taking place after the injunction has expired. These orders are not usually made for more than 12 months in the first instance.
  • If the victim had savings, they may have found that legal aid for injunction proceedings was only available at a prohibitively high financial contribution and so they decided that, in all the circumstances those funds were better deployed on housing, furniture, transport and the like.
·        
At the time of the separation, the victim, who may have had little or no English, was not aware of the possibility of applying to the court for a protective injunction.
If the victim falls through any of these loop holes, then they are left with a discretionary power in the proposed section 31T, whereby the court can prohibit cross-examination if either, the quality of the evidence would be likely to be improved by professionally conducted cross-examination, or if the distress caused by the cross-examination would be less significant. There are various factors listed to which the court must have particular regard when determining this issue.
There is an unspoken assumption within the draft section 31T that the victim, or alleged victim, will have access to legal representation, able to guide them through these labyrinthine provisions. That assumption is by no means a sensible one to make. We now start from the position that legal aid is not available for family proceedings. Even if you give full credit for all the progress made relaxing the domestic violence evidence requirements and assume that the application will not be subject to a bizarre, merits-based, refusal, the fairly stringent financial eligibility provisions still apply. The extent to which housing costs may be taken into account are, for example, capped. It is perfectly possible that a victim with a reasonable job, but a high monthly rent or mortgage bill, or left paying off large unsecured debts, may have no alternative but to act for themselves. They are likely to look at these provisions with blank incomprehension, even if they were aware of their existence.
In its submissions to the House of Commons on the second reading of the Bill, Justice has a simpler and better proposal, although it may not commend itself to the Treasury. At paragraph 20 they say;
 
‘20. In our view, if allegations of domestic abuse are made in family proceedings, it is wholly inappropriate to allow the alleged perpetrator to examine the victim at all. We cannot envisage any circumstances where this is an acceptable way of taking evidence, a concern reflected in the evidence cited above, and should not be left to the judge’s discretion. Such an option can only lead to distress and poor quality evidence. Rather than require the judge to make an assessment, which research shows judges feel uncomfortable and ill equipped to do, Parliament should remove the opportunity entirely.’
 
This would be a far fairer approach. If there must be representation for cross-examination, whenever an allegation of abuse is made, no party will be left feeling that the judge was prejudiced against them from the start. Stand for a moment in the shoes of the alleged abuser. Fabricated allegations are a sad fact of life and do as much harm to genuine victims as to those the allegations are made against. If a judge says ‘there are certain parts of this case where the rules insist that you must have assistance from a lawyer’, that is going to be much more neutral and acceptable than if the judge says that the quality of the accuser’s evidence will be better if I force you to have a lawyer of my choosing. Many will hear that as saying ‘I don’t really need to hear the case to know that you are a nasty piece of work’. What of the alleged victim whose application is refused? Will they ever really believe that they are going to get an impartial hearing?
 
The decisions which will be made in these proceedings will have far-reaching effects, not only for the adults, but also the children, whose future relationship with one of their parents will often fall to be determined at the end of these cases.
It is not enough to look at the provisions of the Bill in isolation. The proposals need to be tested in the context in which they will be expected to operate in the real world. Put them alongside the proposed changes to Practice Direction 12J and it becomes clear that these are proceedings which may lead to the termination of any meaningful future relationship between a child and one of his or her parents on the basis of the findings which are to be made. It is essential that the court has the best possible evidence before embarking on such a course. Not only should the wrongly accused be protected, but, where draconian orders are needed, the court should feel sufficient confidence in its findings to act decisively.
These provisions have the capacity to be a quantum step forward in family justice. It would be a crying shame if a bold and laudable initiative were emasculated by penny-pinching.
 
POSTSCRIPT: On 20 April 2017, in preparation for the dissolution of Parliament prior to the June 2017 general election, the Government withdrew the Prisons and Courts Bill. It may be re-introduced when the new Parliament re-convenes.

 

POWER TO TEST DIFFERENT WAYS OF WORKING: WHERE ARE WE NOW?

 
The Government’s controversial clause 29 to the Children and Social Work Bill was deleted in its entirety, by a significant majority in the House of Lords. The Bill has now moved to the Commons and the Children’s Minister, Edward Timpson, is proposing an amendment which would reintroduce the provisions in what he describes, in a letter of 7 December 2016, as a ‘significantly amended’ form. What has changed from the original clauses and is it enough to make the provisions acceptable?
 
Scope of the Provisions
 
Living in the countryside, we sometimes have field mice coming into the outbuildings. If someone called round, claiming he could get rid of them, but carrying an assault rifle, plastic explosives and a flame thrower, I would be alarmed. I doubt if that alarm would be reduced by assurances that these things were not going to be used. The question, ‘why are they even here?’ would not have been answered. This was one of the problems with the original provisions of the Bill. It had the capacity to suspend vast swathes of both primary and secondary legislation. The Government has, to this day, not satisfactorily explained why it should even want to have such far-reaching powers.
 
The new clause has exactly the same starting point as the old clause 29, namely, that it covers ‘a requirement imposed by children’s social care legislation’. There follows the self-same definition of ‘children’s social care legislation’ that we found in the old version, namely:
 
‘any legislation specified in Schedule 1 to the Local Authority Social Services Act 1970 so far as relating to those under the age of 18;’
together with ss23C and D of the Children Act 1989, the Children Act 2004 and any secondary regulations and such made under any of those Acts.
 
The first task therefore, has to be to look at what is actually in Schedule 1. Here is the list as it currently stands, insofar as it relates to children:
  • Children and Young Persons Act 1933 Parts III and IV
  • Children and Young Persons Act 1963 Part I
  • Children and Young Persons Act 1933 Parts III and IV
  • Children and Young Persons Act 1963 Part I
  • Children and Young Persons Act 1969
  • Adoption Act 1976 (transitional and saving provisions only)
  • Children Act 1989
  • Adoption (Intercountry Aspects) Act 1999 sections 1 and 2(4)
  • Adoption and Children Act 2002
  • Children Act 2004 sections 9A and 13 to 16
  • Children and Young Persons Act 2008 Part 1
  • Legal Aid, Sentencing and Punishment of Offenders Act 2012 section 92 (functions in relation to a child remanded to local authority accommodation)
The schedule contains many other pieces of legislation which are, at least primarily, concerned with the care of adults.
 
Although Schedule 1 has only a small number of sections from the Children Act 2004 included, the proposed provisions of the Bill would bring the whole of the 2004 Act within the scope of the potential exemptions.
 
On top of these, any statutory instruments, made under these pieces of legislation are susceptible to suspension. The list will be rather larger than the human mind can comfortably accommodate.
 
It was the sheer breadth of the potential exemptions which caused such consternation amongst many. Was it just rushed, or lazy drafting? Schedule 1 to the Local Authority Social Services Act 1970 also includes disability and mental health statutes.
 
Would a list of legislation specific to the use of these powers have been too much to ask? The overall impression is that the draftsman wanted to make his work as impenetrable as possible. A much better way of drafting the Bill, if clarity was desired, would have been to list the specific provisions from which exemptions might be given. Debate could then have centred around the merits of those individual sections or statutory instruments. Instead a ‘blank cheque’ is sought and an injured innocence expressed, when there is vociferous opposition.
 
Having initially proposed the same wide-ranging possibilities for exemptions, the new clause offers to exclude various provisions from its scope. They are:
  • Section 17 Children Act 1989 (Duty to provide services to children in need)
  • Schedule 2 (Part I) Children Act 1989
  • Section 20 Children Act 1989 (Provision of accommodation for children in need of it)
  • Section 22 Children Act 1989 (Duty to promote the welfare of looked after children)
  • Section 47 Children Act 1989 (Duty to make enquiries and take action to promote the welfare of children at risk)
  • Section 10 Children Act 2004 (Promoting co-operation to improve the wellbeing of children)
  • Section 11 Children Act 2004 (Making arrangements to ensure that regard is had to the need to safeguard and promote the welfare of children)
Those seven provisions are the ‘comfort blanket’ which is offered to those who oppose the legislation. Are they sufficient? The first test has to be to carry the proposal to its logical extreme. A ‘stress test’ if you will. What would the world of children’s social care look like if that were all that were left? A fearful sight, you may think.
Now, those who promote the clause will say that this is an unfair test because there are safeguards in sub-clause 1 which require any suspension to be for the purpose of promoting the wellbeing of children and the regulations giving exemptions must be approved by Parliament and subject to consultation. All of this is true. However, since one of the objections to the initial clause was its breadth of application; the sense that everything was ‘up for grabs’, I would argue it is a legitimate test to perform. The retreat from the old clause 29 on this issue has been a very small one, with the provisions protected, probably never seriously considered for exemption in the first place.
 
What remains on the ‘at risk’ list? To list every set of regulations and each section of each Act would tax the patience of writer and reader alike, but some examples, picked at random, might inform the debate.
  • Section 14F Children Act 1989 (special guardianship support services)
  • Special Guardianship Regulations 2005 (Supporting s14F above)
  • Sections 17ZA to 17ZC Children Act 1989 (young carers needs assessments)
  • The Young Carers (Needs Assessments) Regulations 2015
  • Section 21 Children Act 1989 (provision of accommodation for children in police protection or detention or on remand)
  • Sections 22A to 22G Children Act 1989 (local authority duties to provide accommodation and maintenance for looked after children). It should be noted that only the general duty to safeguard and promote the welfare of looked after children under section 22 is protected from suspension. The more detailed duties, inserted into the Children Act by the Children and Young Persons Act 2008, are not subject to any protection against suspension.
  • Section 23ZA Children Act 1989 (duty of local authority to visit looked after children and arrange for them to receive advice, support and assistance)
  • Section 23ZB Children Act 1989 (independent visitors for looked after children)
  • Section 23CZA Children Act 1989 (staying put arrangements)
  • Section 25 Children Act 1989 (restrictions on the use of secure accommodation)
  • Children (Secure Accommodation) Regulations 1991
  • Section 25A Children Act 1989 (appointment of independent reviewing officer)
  • Section 34 Children Act 1989 (local authority duties to allow contact with children in care). Despite the Secretary of State’s statement that the Bill is compatible with the Human Rights Act, it has to be said that this sits uneasily with article 8.
  • The whole of Schedule 2 Part II Children Act 1989, which not only set out the duties of a local authority towards looked after children, but also forms the basis of a substantial body of regulations including provisions for the local authority to supervise and inspect foster carers and the accommodation which they offer. Part II includes paragraph 15 which imposes a duty on a local authority to promote contact between a looked after child and his family.
  • Section 49 Children Act 2004 (payments to foster carers)
  • Care Planning, Placement and Care Review (England) Regulations 2010. These regulations are of crucial importance to ensuring that children are placed safely and include, amongst much else, the regulations dealing with the placement of children in care with parents and the regulatory framework for IROs.
  • Fostering Services Regulations 2002
  • Section 4 Adoption and Children Act 2002 (assessment for adoption support services)
  • Adoption Support Services Regulations 2005
Those who propose the reinsertion of these provisions into the Bill, must surely explain, in plain, practical terms, why they might wish to have the power to suspend each of these provisions (and many more). If the answer should be that they would not want to suspend, for example, the staying put arrangements, then they must explain why they, notwithstanding this, seek the power to do something which would be contrary to the best interests of the child. It is a position which seems to defy logic.
 
I would suggest that no list of safeguards about consultations, purposes and parliamentary approval can save this amendment from the fatal flaw which sits at its very heart; namely that it potentially authorises steps which could not, under any conceivable circumstances, be in the interests of the child. Once it is accepted that there are provisions in the clause’s net which should never be suspended in this way, the whole provision becomes indefensible.
 
Risk and Informed Consent
 
The heading of the proposed new clause is significant, saying that it is the ‘power to test different ways of working’. Any test carries with it risks that it may not produce the desired outcome. If that were not the case, the test would not be needed. These tests however, will be carried out on real people; real parents and real children. If we were dealing with a trial of a new drug, this would be hedged about with provisions to ensure that only those who wished to be involved were subjected to the test and that their consent was fully informed, both as to benefits and risks. Such provisions are totally absent from these proposals. How is the seven-year-old child to give a valid consent to the risks of a test? If a local authority obtains an exemption then all the children in its jurisdiction will be the subjects, whether they agree or not. They will have no individual say in the matter.
 
Our path to the current system for child protection is littered with casualties. Most of the provisions which we now have, are there because children were neglected, injured or died. The state’s track record as a parent is far from unimpeachable. If a test turns out to be misconceived and children are in fact harmed, who will offer them redress? The proposal does not contemplate this and gives no thought to victims. Let us suppose that a child’s IRO is withdrawn and as a result of this the child ‘stagnates’ in an unsuitable placement. That child will, perhaps, have to suffer the consequences of these omissions for the rest of her life. Will anyone give her so much as an apology?
 
Conflicts of Interest.
The clause completely ignores the inherent conflicts of interest faced by local authorities asking for exemptions under the proposed clauses. In a period of austerity and budget cuts more than ever, local authorities must try to live within massively reduced budgets and ensure the on-going favour and support of the Secretary of State. Anything which helps spread the budget further is going to be greeted like manna from heaven in County Hall. There is a powerful political motivation here to seek exemptions from an administration already favourably inclined, which may well relegate the welfare of the individual child from its proper place, at the heart of the matter.
 
It is telling that almost all those who have no conflict of interest and are viewing matters solely from the perspective of the child, are opposed to these provisions.
 
We still have little in the way of specific examples of what it is said local authorities want to be exempted from and why. If there were a genuine, child welfare based, case for these powers, why is the Government not explaining how, if such a provision were suspended, these things could be achieved? Instead, we are left to grapple with vague aspirations and vaguer drafting.
 
Conclusions
What then of these provisions? Have they been ‘significantly amended’ and even if they have, have the flaws in clause 29 been overcome? I am far from convinced that there has been any significant change.
 
Careful reading and rational analysis of the new clause reveals it to be more akin to the ‘cut and shut’, dodgy motor car on the backstreet car lot. It has been given a polish, a wheel trim replaced and some tyre-wall black liberally applied. For all that, it is still dangerous. Would you want to see a child of yours riding in it?
 
 

Fairness to Witnesses: An ISW’s Guide to Re W (A Child)

 
In the opening paragraph of his judgment in this case, McFarlane LJ sets out the question to be resolved as follows:
 
‘Can a witness in Family proceedings, who is the subject of adverse judicial findings and criticism, and who asserts that the process in the lower court was so unfair as to amount to a breach of his/her rights to a personal and private life under ECHR Art 8, challenge the judge’s findings on appeal?
 
If so, on what basis and, if a breach of Article 8 is found, what is the appropriate remedy?’
 
The answer turns out to be a good deal longer than the question.
 
The Facts
One of the difficulties about providing an analysis of this case, which will act as a guide to others in similar circumstances, is that only the briefest facts are given. This is because anything which might identify the individuals would defeat the decision, which was that they should not have been named and should not have been criticised. Nonetheless, the decision turns on its particular facts and any attempt to use it in the future will require a comparable factual matrix.
 
What then can be gleaned? The case started with a fact-finding hearing before a circuit judge, sitting as a Deputy High Court Judge. The eldest of a group of siblings had made allegations of sexual abuse in relation to various family members. At the end of a lengthy hearing, the judge found that none of the allegations of sexual abuse were proved. Threshold was crossed on other, unrelated, grounds but, by the time the judgment was given in the appeal, all children were back home with no public law orders in force.
 
At the end of the hearing the judge gave an oral ‘bullet point’ judgment, which was to be followed later by a detailed written judgment. These bullet points included findings that a named social worker (identified only as ‘SW’) and a named police officer (identified only as ‘PO’) had:
 
‘together with other professionals and the foster carer, were involved in a joint enterprise to obtain evidence to prove the sexual abuse allegations irrespective of any underlying truth and irrespective of the relevant professional guidelines. The judge found that SW was the principal instigator of this joint enterprise and that SW had drawn the other professionals in. The judge found that both SW and PO had lied to the court with respect to an important aspect of the child sexual abuse investigation. The judge found that the local authority and the police generally, but SW and PO in particular, had subjected C to a high level of emotional abuse over a sustained period as a result of their professional interaction with her.’ (McFarlane LJ at para 7)
 
The first, key point, is that these scathing criticisms had not formed part of the case presented by any of the parties at the hearing. Neither SW nor PO had been cross-examined on this basis when they gave their evidence. The judge did not raise the concerns himself in the course of the hearing. The findings were said to come ‘out of the blue’ and the first anyone knew about them were when the judge delivered his oral, bullet point judgment.
 
By the date of the judgment, SW was no longer employed by the applicant local authority, having moved to a different authority. Delivering his oral judgment, the judge went on to direct that SW’s new employers ‘must be alerted to my findings as a matter of urgency’. As a result of this, SW was suspended by her employers and had been unable to work for any other authority since that time. The findings also had potential adverse consequences for PO’s future police career.
 
One month after his oral decision, the judge circulated a first draft of his full judgment. At a directions hearing a few days later, following submissions from the parties and the police, the judge directed that a copy of the judgment should be disclosed to those who were subject to criticism, so that they could prepare submissions and be represented at the next hearing some ten weeks later.
 
At that hearing, PO and three others were represented. SW attended but was unrepresented. Two months later, an amended draft judgment was circulated. There appears to have then been a further hearing limited to the question of which professional witnesses should be named in the final version of the judgment, that would be made public. The judge decided that SW and PO should both be named.
 
None of the parties wished to appeal against the judge’s orders in relation to the child or the overall outcome of the proceedings. The local authority had, like SW been heavily criticised by the judge. Permission was given to the council, together with SW and PO to appeal against the findings made against them. The appeal did not involve any assessment of whether the judge’s criticisms were justified or not. The entire focus was on the fairness of the process undertaken by the judge which gave those criticised no opportunity to know or meet the allegations during the course of the trial.
 
A final matter to note, is the very isolated position SW found herself in. Neither her current employer, nor her employer when she carried out the work in question, seem to have been willing to assist her with the cost of representation in the appeal. She was initially a litigant in person but eventually managed to secure pro bono counsel to (very ably) represent her in the Court of Appeal. This is in contrast to PO, whose representation appears to have been provided through the police.
 
Legal Hurdles to Overcome
The problem, faced by all three appellants, was that they did not seek to challenge the judge’s findings on the issue of sexual abuse, or the substantive orders which he had made. Additionally, SW and PO had to overcome the fact that they were not parties to the proceedings, only witnesses. How could a witness appeal? These difficulties crystallised in the shape of s31K Matrimonial and Family Proceedings Act 1984 which provides that,
 
‘…if any party to any proceedings in the Family Court is dissatisfied with the decision of the court, that party may appeal…’ (emphasis added).
 
Could SW and PO be treated as ‘any party’ and were the comments they complained about part of ‘the decision’?
 
Lord Justice McFarlane finds his answer to the party issue in three different ways.
 
The first possible route arises from the steps taken by the judge to allow SW and PO to make representations about the draft judgement. McFarlane LJ took the view that by doing this he had conferred upon them at least the status of ‘intervenor’, which is a limited kind of party and so carries with it an entitlement to appeal.
 
For the second possible route the Court of Appeal refers to a Town and Country Planning Act case of MA Holdings Ltd v George Wimpey UK Ltd and Tewkesbury BC [2008] EWCA Civ 12. At paragraph 9 of that case, Dyson LJ (as he then was) says,
 
‘It would be surprising if the effect of the CPR(Civil Procedure Rules 1998)were that a person affected by a decision could not in any circumstances seek permission to appeal unless he was a party to the proceedings below. Such a rule could work a real injustice, particularly in a case where a person who was not a party to the proceedings at first instance, but who has a real interest in their outcome, wishes to appeal, the losing party does not wish to appeal and an appeal would have real prospects of success.
 
So, it appears that appeals are not always confined to the parties. They can be brought by someone who is significantly affected by the outcome, but who was not a party to the original case.
 
Lastly, the judge says that even if the first two solutions were to be wrong, the impact of the trial judge’s findings on the two individuals is so serious that their article 8 rights to respect for their private lives are engaged. The court is therefore obliged by section 3 Human Rights Act 1998 to read s31K in such a way as to make the doorway wide enough for them to pass through.
 
McFarlane LJ then moves on to look at the second legal hurdle, which all three appellants (including the local authority) had to overcome, namely;
‘whether an appeal is possible where the only target of the appeal relates to subsidiary internal findings of the judge set out in his judgment, and does not relate to any specific order that he made.’
 
At this stage, it is sufficient to say that there are serious legal obstacles to be overcome here, but they arise primarily from decisions made in commercial cases. The nature of those difficulties is discussed more fully below. The Court of Appeal, rather elegantly, sidesteps these issues by explaining that in the commercial field, rights to a private life are not a relevant issue. By contrast, in the present case, the process adopted by the judge had been so unfair to SW and PO that:
 
‘…it is clear that the private life rights of SW and PO under Art 8 of these individuals as witnesses would be breached if the judgment, insofar as it makes direct criticism of them, is allowed to stand in the final form as proposed by the judge. The finding of breach of Art 8 does not depend on whether or not the judgment is published; the need to inform employers or prospective employers of such findings applies irrespective of whether the judgment is given wider publication.
 
Lord Justice McFarlane’s reasons for these conclusions are then set out as follows:
 
a) ‘In principle, the right to respect for private life, as established by Art 8, can extend to the professional lives of SW and PO (R (Wright) v Secretary of State for Health and R (L) v Commissioner of Police for the Metropolis);
 
b) Art 8 private life rights include procedural rights to fair process in addition to the protection of substantive rights (Turek v Slovakia and R (Tabbakh) v Staffordshire and West Midlands Probation Trust);
   
c) The requirement of a fair process under Art 8 is of like manner to, if not on all-fours with, the entitlement to fairness under the common law (R (Tabbakh) referring to Lord Mustill in R v Secretary of State for the Home Department, Ex Pte Doody);
     
d) At its core, fairness requires the individual who would be affected by a decision to have the right to know of and address the matters that might be held against him before the decision-maker makes his decision (R v Secretary of State for the Home Department, Ex Pte Hickey (No 2));
 
e) On the facts of this case protection under Art 8 does extend to the ‘private life’ of both SW and PO for the reasons advanced by their respective counsel and which are summarised at paragraphs 61, 86 and 87;
 
f) The process, insofar as it related to the matters of adverse criticism that the judge came to make against SW and PO, was manifestly unfair to a degree which wholly failed to meet the basic requirements of fairness established under Art 8 and/or common law. In short, the case that the judge came to find proved against SW and PO fell entirely outside the issues that were properly before the court in the proceedings and had been fairly litigated during the extensive hearing, the matters of potential adverse criticism had not been mentioned at all during the hearing by any party or by the judge, they had certainly never been ‘put’ to SW or PO and the judge did not raise them even after the evidence had closed and he was hearing submissions.’
 
In short, where the trial judge went wrong, was that the critical findings against SW, PO and the local authority had not been ‘put’ to either SW or PO when they were giving their evidence, so that they could answer the allegations for themselves and, potentially, rebut what was being suggested. To the question ‘what should the judge have done?’ the Court of Appeal, at paragraph 95, offers the following response:
‘Where, during the course of a hearing, it becomes clear to the parties and/or the judge that adverse findings of significance outside the known parameters of the case may be made against a party or a witness consideration should be given to the following:
 
a) Ensuring that the case in support of such adverse findings is adequately ‘put’ to the relevant witness(es), if necessary by recalling them to give further evidence;
 
b) Prior to the case being put in cross examination, providing disclosure of relevant court documents or other material to the witness and allowing sufficient time for the witness to reflect on the material;
 
c) Investigating the need for, and if there is a need the provision of, adequate legal advice, support in court and/or representation for the witness.’
 
Outcome
The outcome is set out at paragraph 122 in these terms:
‘…those parts of the judge’s judgment which record those matters are to be set aside on the basis that they are to have no further validity and are to be regarded as if they had never been made.’
 
Comment
To begin with an aside, it is notable that McFarlane LJ is careful to point out that the requirement of a fair process is, for all practical purposes, identical to the common law entitlement to fairness. The decision should therefore survive any possible future repeal of the Human Rights Act 1998.
 
The Court of Appeal are clearly worried about opening a flood of appeals by disgruntled expert witnesses and social workers. It is therefore stressed, repeatedly, that this is a bespoke solution to an almost unique and extreme set of circumstances, where the findings came as a ‘bolt from the blue’ and with no chance to respond to them. Certainly, it would be unusual for criticisms not to be put the witness on behalf of one or more parties or the judge in the course of their cross-examination.
 
In relation to people who have not been called to give evidence and who may be the subject of adverse comment, there is already an established procedure set out by Munby J (as he then was) in Re M (Adoption: International Adoption Trade) [2003] EWHC 219 (Fam). In that case he was proposing to criticise a local authority and two individuals. Before the judgment was handed down, a draft was sent to all three, inviting them to make either written or oral submissions about any of the findings proposed, or views expressed. Therefore, if someone who, for whatever reason, had not been called to give evidence were named and criticised without first being allowed to meet the accusations, a similar right of appeal may lie.
 
What is certainly now clear, is that a witness who is effectively ‘convicted in their absence’ and to be ‘named and shamed’ in a published judgment, may be able to appeal. It is notable that the Court of Appeal did not enter onto any enquiry into whether the criticisms of SW and PO were correct, or even justified. The issue began and ended with the fairness of the process by which those findings had been made.
 
The issue which is unanswered is whether there is redress, where the procedure has been fair, but the witness is still aggrieved by comments which are of, potentially, career-ending seriousness. Can they ask the Court of Appeal to look at the merits of the criticisms made?
 
On that we can now say that the issue of not being a party, would not stand in their way. However, if the procedure adopted by the judge does not infringe either common law fairness or article 8 ECHR, are they able to challenge what are, effectively, ancillary remarks?
 
There is a Court of Appeal case of Cie Noga SA v Australia and New Zealand Banking Group [2002] EWCA Civ 1142 which appears to answer this question in the negative. However, the judgment of Lord Justice Waller in that case, suggests that this prohibition may not extend to findings which are ‘pregnant with legal consequences’ in a context outside the issues which the court is actually deciding. In Re W it was argued that for SW and PO, because of the personal and professional impact on the witnesses, the trial judge’s remarks about them were ‘pregnant with legal consequences’. In the event, having found that the procedure adopted by the judge breached the requirements of fairness and/or the witnesses’ rights to have their private lives respected by the state (in the form of the courts), this question did not need to be answered by the Court of Appeal in Re W.
 
Even if, in a future appeal, the court is persuaded that this route is open, the witness is only ‘through the door of the court’. To succeed they would have to go much further than showing that a different judge might have viewed things differently. To have a successful appeal they would have to show that the trial judge either misdirected himself as to some relevant legal provision, or was ‘plainly wrong’, in the sense that the evidence could not possibly support such findings. An appeal is not a rehearing.
 
The status of an expert is, potentially, a dangerous incitement to hubris. The ability of the court to censure is a valuable check on this. The decision in Re W is a balancing check to judicial hubris. Careers may be ruined by remarks made about professional witnesses and their competence. Whilst it is absolutely right that those who have risked causing harm by their incompetence should be censured, that must always be tempered by ensuring that the requirement fairness is scrupulously adhered to. If there is any doubt whether the comments are fair and based on full and accurate information, it may be better that they are left unsaid and that employers and professional bodies should investigate fully, calmly and fairly.
 
 
 

 

TURKEYS VOTING FOR CHRISTMAS: BREXIT, EUROPE AND
THE HUMAN RIGHTS ACT

 
A recent Private Eye cartoon showed a tombstone which read, ‘Always read the small print…I didn’t’.  There is much wisdom there.
 
It is a real fear that the European Convention on Human Rights (‘the ECHR’) and the European Court of Human Rights are becoming (in the public mind) so hopelessly entangled with the European Union that, unable to unravel the two, we throw the whole thing out together.  To anyone who has ‘read the small print’ such action would be inconceivable and only possible because those in government found such confusion politically expedient.
 
Let us start from the basics.  The European Convention on Human Rights and the Court of Human Rights are nothing to do with the European Union.  The ECHR was drafted in 1950 and ratified in 1953.  The Treaty of Rome, which established what was to become the European Union, was not signed until 1957 and has an entirely different pedigree and signatories.
 
The main draftsman of the ECHR was Sir David Maxwell-Fyfe KC MP, a barrister and Conservative MP, who went on to serve as Home Secretary and (under the title Viscount Kilmuir) as Lord Chancellor.  He had been a leading prosecutor at the Nuremberg trials, noted for his devastating cross-examination of Herman Goering.  The Convention is therefore steeped in common law traditions of personal liberty.  The treaty was ratified under the premiership of Winston Churchill.
 
There are now 47 states who are signatories to the ECHR, many of whom, such as Russia, Turkey, Azerbaijan and Armenia, are not even members of the European Union.  Iceland left the European Union but remains part of the ECHR.  There is no link at all between the two bodies.
 
What about the Human Rights Act 1998?  What was that about?  The citizens of the UK have had all of the rights set out in the ECHR since 1953.  However, because it had not been incorporated into domestic law, anyone who felt their rights had been interfered with had to go to the European Court of Human Rights in Strasbourg to make their claim.  The court is specific to the ECHR and the presence in the same city of European Union institutions is purely coincidental.  The 1998 Act simply allowed human rights issues to be heard in the UK courts, without, as it were, washing our dirty linen in public.  The individual had no more or less rights after the Act was passed.  They were simply easier to access.
 
What does the ECHR actually say?   This is where we get into the small print.  Many will be surprised to learn that it imposes no restrictions on them as individuals.  Getting rid of the Human Rights Act would not remove any kind of ‘foreign yoke’ from around their necks, because the Convention only restricts the way in which the state and its organs can behave towards the individual.  The sort of things that it prohibits are these:
  • Sending a paramilitary death squad to your house to shoot you (Article 2 – Right to Life)
  • The police attaching electrodes to your genitals to make you confess to crimes (Article 3 – Prohibition of torture)
  • Selling illegal child immigrants to the highest bidder (Article 4 – Prohibition of slavery and forced labour)
  • Locking you up without trial or charge for years (Article 5 – Right to liberty and security)
  • Allowing judges to be bribed (Article 6 – Right to a fair trial)
  • Making something a crime retrospectively, so that you go to jail for something which was legal when you did it (Article 7 – No punishment without law)
  • Planting listening devices in your bedroom to check if you should be getting a single person’s allowance on your council tax (Article 8 – Right to respect for private and family life)
  • Making it compulsory that everyone converts to Islam and that all women wear a hijab in public (Article 9 – Freedom of thought, conscience and religion)
  • Closing newspapers and television stations down if they do not support the government (Article 10 – Freedom of expression)
  • Sending in troops or police to break up a trade union meeting (Article 11 – Freedom of assembly and association)
 
So, having read ‘the small print’, what could possibly induce anyone to support the repeal of the Human Rights Act?   In simple, selfish terms, ‘What’s in it for me?’ The answer, as the late Paul Daniels might have put it, is ‘Not a lot!’.  Perhaps the better question would be to ask those in power, ‘What’s in it for you?’
 
They might tell you that the Act gets abused by all kinds of undeserving people.  That a criminal could not be deported ‘because he had a cat’.  That is economical, to the point of being positively parsimonious, with the truth.  There was no cat who saved his wicked owner from deportation.  The European Court of Human Rights, in fact, very seldom interferes in UK affairs.  Only 1.42 per cent of its cases relate to the UK and in 2013, out of 1652 cases brought against the UK in Strasbourg, 1633 were held inadmissible or otherwise struck out.
 
It is suggested that there should instead be a ‘British Bill of Rights’ but there is scant information about what it would contain.  Would the rights be more extensive than those given by the Convention?  Somehow, I doubt it.  Bear in mind too, that whatever one Parliament does today, another Parliament can undo tomorrow.  It would be capable of repeal and amendments by future governments of all political hues.  Furthermore, since there is no suggestion that the UK should withdraw from the Convention, its citizens could still go to the court in Strasbourg if their rights were interfered with.  We would have two parallel and competing systems and be a judicial laughing stock.
 
The choice of the title ‘Bill of Rights’ is telling.  It borrows the clothes of the Bill of Rights Act of 1689 and of the United States Bill of Rights which it helped to inspire.  How well those clothes will fit, remains to be seen.  The question – why does it need to borrow clothes?  – unanswered.
There is a profound political paradox in these moves to reform.  The Convention was drafted by a Conservative politician and ratified under the doyen of Conservative prime ministers.  It is concerned with placing limits on the powers of the state to interfere with the lives and persons of the individual.  That same free-market, libertarian philosophy is to be found in writers such as Robert Nozick, whose notions of the ‘minimal state’ underpinned much of Margaret Thatcher’s approach.  How can it be that their successors now seek to unfetter the state and, in my dystopian vision of the future, place those fetters on its citizens?
 
 
 
 
 

IN DEFENCE OF THE TANDEM MODEL

 
At the end of Sir James Munby’s 14th ‘View from the President’s Chambers’, published on 11 August 2016, there is an indication that, purely on a costs saving basis, the Ministry of Justice is ‘investigating whether there is scope for a reformed level of representation for children in public law cases’.  This investigation is expressed to be with the President’s support.  As to what the MoJ (or the cold hand of the Treasury) might wish to see, there is no clue.  The President however, seems to be considering whether the attendance of the guardian and perhaps the child’s solicitor, might be dispensed with at some hearings.  We have, of course, contested this ground before.
 
Sir James has shown himself to be an exceptionally humane and intelligent head of the Family Court, as well as politically astute.  Children’s justice owes him much, including this disclosure.  The managing of a ‘fighting retreat’ requires considerable skill if it is not to turn into a rout.  It has been this President’s lot to carry out such a task.
 
I am not entrusted with an office of state.  I and others like me, simply have the job of giving a voice to the voiceless and being awkward, uncompromising and speaking our minds, regardless of the consequences.
 
In the first place, it needs to be made clear that this is not an issue of demarcation and overmanning; something reminiscent of late 1970s strikes.   We are not arguing about who closes the train doors.  The Ministry of Justice and their political masters will be quick to dismiss opposition from children’s lawyers and guardians as the voices of ‘vested interests’.  In truth, the Family Court is one of the few remaining places where ‘professionals’ in the sense the word was defined to me, over thirty years ago, can still be found.  Those who follow a profession, I was told, are paid in order that they might work, rather than vice versa.  I am not sure that politicians have ever understood this.  The backdrop to any response must however, be that no one is defending their job.  Whether solicitors or guardians, we all have more work to do than you might shake a stick at.  The issue is getting the right outcome.  People are going to have to live the rest of their lives in the shadow of the decisions taken in these cases; can anyone tell me how much is too much to spend, when the outcome may affect unborn generations?
 
Is it really thought that solicitors and guardians are attending hearings for an easy morning away from the desk, or the sheer social interaction of the event? In North Yorkshire at least, most guardians are double or treble booked in venues up to 60 miles apart and the solicitors are not being paid anything for up to a two-hour round trip to court and back.  If all that anyone wanted was an easy life, less court hearings to attend would surely be welcome.
 
Secondly, there is no suggestion, from the President at least, of any wholesale abandonment of the tandem model.  He says that he would ‘be strongly opposed to any watering down of this vital component of care proceedings’ and we should take him at his word on that.  The issue, for now, is a discrete one, of whether there is scope for dispensing with the attendance of the guardian and perhaps even the child’s solicitor, at some points in the case. 
 
The current MoJ investigation seems to be focussed on the views of the judiciary.  This is all well and good, save that there is much that the judges do not see or hear.  The judge sees the parties come into court, a draft order is handed up for approval and the parties leave without the child’s solicitor, or the guardian having said a word.  Viewed from the bench, one might be forgiven for thinking that the cost of their attending that day had been unnecessary.  The judge of course will know little or nothing of the discussions which have taken place in the conference rooms and corridors beforehand.  They can know nothing, for example, of the proposed change to the care plan, discussed for the first time between social workers and their counsel at court, but dropped after discussion with the guardian and the child’s solicitor. 
 
Children’s cases are dynamic, evolving things.  Whilst there are some kinds of litigation which are like putting on an ‘old standard’ by a repertory theatre company, rehearsed and familiar, child care is more akin to improvisation, reacting to unexpected developments and the reactions of others to those changes.  Gone are the days of judges as passive approvers and adjudicators.  Today’s care judges are trained to be interventionist and to take an active role in the managing and directing of the case.  If I attend a court hearing on behalf of the children, but without the guardian present, there are grave limits to my ability to react to unexpected developments.  I am not a social worker.  I cannot ‘make up’ some instructions for myself which I might guess the guardian would have given me had he or she been there.  On a 26-week timetable, there will be not time for delay.  Decisions will be made and the case will move on.  Everyone but the child will have had some input.  My clients will have had second class representation and that is not something I can easily accept.
 
Now, it is all well and good me complaining, but is there any real evidence that not having as much input from the guardian changes outcomes? As luck would have it, the decision of the Court of Appeal in Re W (A Child) [2016] EWCA Civ 793, has recently been published.  This case related to cross applications for adoption by the potential adopters with whom the child had been placed by the local authority and an eleventh hour special guardianship application by, recently discovered, paternal grandparents.  In the Court of Appeal, Lord Justice McFarlane was highly critical of the report prepared by the Children’s Guardian which he said was ‘inadequate’.  The Guardian had filed her report on 30 November 2015, without seeing the child, and then seems to have been away from work ill, until shortly before the final hearing in April 2016.  In her absence, the case had continued to develop and the two-year-old child was in no position to give instructions to her representatives in the Guardian’s absence.
 
At paragraph 84 of his judgement, McFarlane LJ gives a plain English explanation of what was missing from the case and what, of course, the guardian provides for the court:
‘84.  This case was all about A.  She is a person.  Her personality, her attributes, her achievements should have been centre stage in these proceedings.  Yet she does not shine out from any reading of the court papers or from the judge's judgment, indeed, the opposite is the case.’
 
The task of the guardian, at every hearing, is to act as a proxy for the child and to ensure that the child does ‘shine out’ before those who are making decisions about that child’s future life.
 
Children’s guardians and their legal representatives are not children, and it is patronising to treat them as such.  There will be some hearings when, with proper advance discussions and preparation, the guardian can be released to do more valuable work elsewhere.  The only people with the information to make this decision are the guardian and the child’s solicitor and they should be trusted to act in a responsible fashion.  They are, after all, responsible for the consequences.
 
It is already rare for guardians to attend fact finding hearings in full.  This is less than ideal, but perhaps an inevitable compromise.  It does disadvantage the guardian, in working with the parties afterwards, that they were not able to hear the nuances of the evidence, particularly some of the expert evidence.  Could it be contemplated that the child would have neither solicitor/counsel nor guardian at such hearings? This, I would suggest, would be a dangerous step to take. 
 
The simplistic response would be to say that I have to be there to call the expert witnesses, but the reality is that the judge could make them the court’s witness and my ‘walk-on’ part asking the radiologist to confirm the contents of her report could quite easily be done by someone else.  There are however, much more important tasks, which can only be accomplished by the child being properly represented by an advocate with proper instructions.
 
a)    As a matter of article 6 fairness, the child is entitled to be represented at a hearing where decisions are being made about things which did or did not happen to them and which will determine what, for the rest of their lives, happens to them.
b)    Whilst it is often the case that no submissions are necessary on behalf of the child at the conclusion of a fact finding, I cannot be alone in having been required to make detailed submissions, where the local authority suddenly decided not to pursue particular findings which the guardian (fortunately present) believed to be made out and needed rulings, for his work at the welfare stage to be carried out.
c)    I have always approached my task as, primarily, to ensure that all the relevant facts are placed before the court, so that the best decision can be made for the child.  My client’s best interests will be served by the truth coming out, whether that is contained in the local authority evidence, the parents’, or a combination of the two, is almost a matter of indifference.  It is an old advocate’s adage that you never ask a question to which you do not already know the answer.  An advocate, seeking to prove a particular set of facts will be very reluctant to open up issues which arise spontaneously, but where the details are unknown.  On behalf of the child you have a freedom to pick up these loose threads and to follow them where they lead.  Often it is a cul-de-sac, but occasionally, something very significant emerges or, very occasionally, a witnesses’ testimony, quite literally, falls apart. 
 
Of course, you can say that these sorts of things do not happen often, that is true.  The political, rather than legal question is this: what is an acceptable casualty rate? How many wrong decisions are a price worth paying for the sake of the budget?
 
As I read this piece back to myself, I can almost hear the exasperated response of ‘well what is the answer then?’  I do not put forward a solution because no one in power has seen fit to tell me what the question is.   That is part of being independent and awkward.  If the Secretary of State would speak frankly to the professions, as to what she is seeking to achieve, she may find that there are a lot of inventive and creative minds at her disposal.  Thus far, neither she nor her predecessors have sought to take advantage of a cooperative approach, which treats with respect those who may have some real understanding of the issues.
 
I have never understood why, politicians say that in the UK, we spend more on legal aid than any other country in Europe and seem to think that this self-evident proof that something is wrong.  When the money is spent on the NHS or on defence it is spoken of as a matter of national pride.   When did equal justice for all, become a matter of shame?
 

 

CHILDREN IN THE WITNESS BOX OF THE FAMILY COURT

 
In Re E (A Child)[2016] EWCA Civ 473, the court had to deal with a situation which, whilst unusual, is by no means rare.  There were allegations of sexual abuse by Mr E, who was said to have abused the children living next door and orchestrated sexual activity between the children and his 14-year-old son A, who had some learning difficulties.  One of the issues was whether, as potentially both victim and perpetrator, A should have been assisted, through special measures to give evidence himself, rather than the court being confined to his ABE interview.
 
The need for a court to hear both sides of the case and for the accused to be able to answer his or her accusers, has a long history.  Writing in the fifth century BC, the Greek dramatist Aeschylus, in his play The Eumenides, puts the cardinal principle into the mouth of the goddess Athena.  Orestes has been pursued into her temple by the Furies who seek revenge upon him for his mother’s murder.  Having heard their accusation, she says
 
‘One plea is now presented, two are to be heard.’
 
Turning then to Orestes,
 
‘It is your turn to speak, my friend. What will you say?..
...tell first your country, birth, and history;
Then answer to this charge; and let your speech be plain.’
 
In English law however, the right to speak in your own case has often been very far from ‘plain’.  In civil cases anyone ‘interested’ in the outcome of a case was not permitted to give evidence until the Evidence Act 1843 and the actual parties and their spouses were not permitted to be witnesses until the Evidence Acts of 1851 and 1853. For those accused of a crime, they were deemed incompetent to give sworn evidence until the Civil Evidence Act 1898.  The basis for this was said to be that they would, inevitably, lie and so there could be no value in what they might say. In Hardy’s Case in 1794, Chief Justice Eyre explained that ‘the presumption ... is, that no man would declare anything against himself, unless it were true, but that every man, if he was in a difficulty, or in the view of any difficulty, would make declarations for himself.’  At a time when a man could be hanged for the theft of a loaf of bread, perhaps this belief in a defendant’s willingness to lie was not misplaced.
 
The next stepping stone along our way is article 6 of the European Convention on Human Rights which sets out the right to a fair trial in civil and criminal cases, but which, interestingly, does not guarantee the right to call witnesses and to give live evidence.
 
Where then does all of this leave us with care proceedings and children, who are parties to the proceedings, but, save through their Children’s Guardian, solicitor and counsel, seldom seen or heard?  This is an issue which has seen significant changes in the last few years, belatedly, mirroring some of the developments outlined above, as a result of which Children’s Guardians may now have to confront new and difficult questions.
 
The courts initially set themselves clearly against children giving live evidence in care proceedings, on the perfectly understandable basis that the experience would be likely to cause further trauma to the child and would simply do far more harm than good.  Beginning with Butler-Sloss LJ in 1991, the family courts consistently recoiled from having the child as a live witness and exposed to cross examination. In LM v Medway Council [2007] EWCA 9, Smith LJ put it very clearly;
 
‘The correct starting point . . . is that it is undesirable that a child should have to give evidence in care proceedings and that particular justification will be required before that course is taken.  There will be some cases in which it will be right to make an order. In my view they will be rare.’
 
It remained the position, that there was a very strong presumption against the child giving evidence, until the issue came before the Supreme Court in 2010.
 
In Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12, Lady Hale (giving the unanimous decision) said that, in the light of article 6, the previous presumption against a child giving evidence could no longer be sustained and that the court should begin from a neutral position, considering the following factors:
 
  • An unwilling child should rarely, if ever, be obliged to give evidence.
  • The risk of harm to the child if he or she is called to give evidence remains an ever present factor to which the court must give great weight.
  • The risk, and therefore the weight, will vary from case to case, but it must always be taken into account.
  • At both stages of the test the court must also factor in any steps which can be taken to improve the quality of the child's evidence, and at the same time decrease the risk of harm to the child.
  • The essential test is whether justice can be done to all the parties without further questioning of the child.
  • When considering this issue, the family court must weigh two considerations: the advantages that this would bring to the determination of the truth and the damage it may do to the welfare of this or any other child.
 
This issue was considered further by Pamela Scriven QC, sitting as a Deputy High Court Judge in Re J (Child Giving Evidence) [2010] EWHC 962 (Fam).  This was a case which concerned two twin 16-year-old boys who, it was said, had been the victims of significant physical abuse by their mother.  One of the children was anxious to give evidence; the other was content for his views to be conveyed to the court by the Children’s Guardian.  Here, the judge recognised that it was not simply a question of balancing the probative value of the evidence against the risk of harm.  Here it was also necessary to weigh the welfare advantages to the child of having the opportunity to give evidence, taking into account that the boy wished to do so, and would feel a profound sense of injustice if he was not permitted.
 
When Re W was before the Court of Appeal, a referral was made to the Family Justice Council to consider the issue of children giving evidence in family proceedings.  The working party who prepared the report included Nagalro’s Ann Haigh.  In the event, the Supreme Court felt it was able to deal with the appeal without waiting for the FJC report which was published in December 2011.  The recommendations of the working party, in relation to whether a child should give evidence or not, are worth reproducing in full. This is one of the many areas where an effective partnership of equals between the Children’s Guardian and the solicitor for the child will yield real dividends for the child, as both legal and social work expertise must be brought to bear on the different aspects of the problem.
 
8.
In light of Re W, in deciding whether a child should give evidence, the court's principal objective should be achieving a fair trial.
9.
With that objective the court should carry out a balancing exercise between the following primary considerations:
i) the possible advantages that the child being called will bring to the determination of truth balanced against;
ii) the possible damage to the child's welfare from giving evidence i.e. the risk of harm to the child from giving evidence;
 
having regard to:
 
a.   the child's wishes and feelings; in particular their willingness to give evidence;     as an unwilling child should rarely if ever be obliged to give evidence;
 
b.   the child's particular needs and abilities;
 
c.   the issues that need to be determined;
 
d.   the nature and gravity of the allegations;
 
e.   the source of the allegations;
 
f.   whether the case depends on the child’s allegations alone;
 
g.   corroborative evidence;
 
h.  the quality and reliability of the existing evidence;
 
i.   the quality and reliability of any ABE interview;
 
j.   whether the child has retracted allegations;
 
k.   the nature of any challenge a party wishes to make;
 
l.   the age of the child; generally, the older the child the better;
m. the maturity, vulnerability and understanding, capacity and competence of the child; this may be apparent from the ABE or from professionals’ discussions with the child;
 
n.  the length of time since the events in question;
 
o.   the support or lack of support the child has;
 
p.   the quality and importance of the child’s evidence;
 
q.   the right to challenge evidence;
 
r.   whether justice can be done without further questioning;
 
s.   the risk of further delay;
 
t.   the views of the guardian who is expected to have discussed the issue with the child concerned if appropriate and those with parental responsibility;
 
u.  specific risks arising from the possibility of the child giving evidence twice in criminal or other and family proceedings taking into account that normally the family proceedings will be heard before the criminal; and
 
v.   the serious consequences of the allegations i.e. whether the findings impact upon care and contact decisions.’
 
 
It was against this background that the Court of Appeal came to consider Re E and amongst other issues, whether the trial judge had been correct to decide that the victim/perpetrator child A should not give evidence in the proceedings.  McFarlane LJ was highly critical of the approach which had been taken.  The judge points out that in criminal cases, which will often involve the same children and facts as the care case, live evidence from a child is not unusual.
 
‘46. As is well known, children, even children of a very young age, who have made allegations of abuse which are subsequently the subject of criminal proceedings, are required to give live evidence within the criminal process. It is understood that some 40,000 do so during the course of each year. The child will typically be protected from full exposure to the court room by the use of special measures, for example, answering questions over a live video link. Conversely, for many years the practice and culture in family proceedings was that such children, even if aged in their late teens, would never be required to give live evidence in the Family Court.’
 
After quoting at some length from Baroness Hale’s judgement in Re W (above) the judge continues as follows:
 
‘48. I make no apology for quoting so extensively from Baroness Hale's judgment, which would seem to have gone unheeded in the five or more years since it was given. The need to give appropriate consideration to a child giving evidence in a case where that issue arises will soon be given further endorsement by amendments to the FPR 2010 and Practice Directions in accordance with recommendations from the President's working group on children and other vulnerable witnesses. In the meantime, the decision in this case should serve as a firm reminder to the judiciary and to the profession of the need to engage fully with all that is required by Re W and the Guidelines.’
 
The decision of the Court of Appeal was that the findings should be set aside and the case remitted back to the Family Court for a fresh hearing and reconsideration of the child A giving evidence.
 
What then is the message for Children’s Guardians? Essentially it is that the issue of whether, and if so how, a child should give evidence must be kept in mind. Since the court requires it to be raised at an early stage it will have to be considered sooner rather than later and work done with the child on this issue so that the court can have the advice it needs when considering and balancing all the relevant factors.
 
It is unlikely that children will give live evidence with anything like the frequency encountered in the Crown Court.  This is as much to do with different standards of proof and rules about the admissibility of evidence as anything else. What is clear however, is that there is a tide of judicial opinion running on this issue and with changes to the Family Procedure Rules in the offing as well, practitioners need to have thought through the possible implications for children for whom they are responsible.
 
It is not so uncommon, in sexual abuse cases, that an older child is alleged to have migrated from one of the abused, to an abuser.  The outcome of those civil proceedings, whilst not a criminal conviction, will potentially have far reaching effects on that child when, in a few short years, he starts a family of his own, or begins a relationship with someone who has children.  If the child is capable, the right to a fair trial may demand that they should have the chance to be heard before findings are made which may change their lives.

 

ELLIE BUTLER: HUMILITY AND CHILD PROTECTION

 
Child care law is unlike any other area of law.   If I make a poor job of drafting a commercial contract, the worst that can happen is that people will be out of pocket.  Life will go on.  If I fail to get the appropriate medical reports for the victim of a road accident or an industrial disease, they will be out of pocket, not have the resources they should have had, but at the end it is ‘only money’ and my insurers will have to make it right.  The difference with child care, as we all know, is that we are dealing with life and limb and whatever we do will change someone’s life forever.  We all hope for the better but, ultimately, if we call it wrong, someone may die.  If you deal with child protection work, that is the daily reality.  There is no safety net.  No amount of insurance can ever put it right.
 
The courts are possibly the worst way to find out what happened in the past; with the exception of every other system.  The final decision is made by a person who was not there.  He, or she, is assisted by a team of other people who were not there either.  Usually, none of them will have any prior knowledge of the people who were actually present and they are unlikely to have had a comparable experience themselves.  Some, or perhaps all, of the people who actually witnessed the events may be lying or mistaken in whole or in part.  In any event their accounts are likely to be, at least partially, irreconcilable.
 
That is the problem faced by every civil and criminal court.  The only solution would be if Big Brother watched and recorded every moment of our lives and there are some prices that are simply too high to contemplate.  In children’s cases however, the problem goes further, because predictions then have to be made about what will happen in the future.  That is fraught with risk.  Once you have excluded methods such as runes, tarot cards, crystal balls and the entrails of poultry, there is really only one thing left to do.  You take a ruler and pencil.  You plot a series of fixed events or points in the past and use them to project a line forward into the future.  This depends on two dubious assumptions.  Firstly, that the fixed points in the past are correct.  See the preceding paragraph for the caveats there.  Second, you have to accept that the future will follow a straight line trajectory, with no unexpected swerves, hair pin bends, or other deviation.  Such consistency is, in fact, rare.
 
There is even a perverse extent to which years of experience can actually be a problem, as we look back for templates that seem to fit the present case and fit things into that pattern, even when the ‘fit’ is less than comfortable.
 
What follows from this is that from time to time, however much care we take, we will get it wrong.  None of us are omniscient; we are, in almost every case, trying to do our best with limited information and defective tools.
 
The reality is that there is only one person ‘to blame’ for the tragic and unnecessary death of Ellie Butler and that is her father. 
 
The proceedings were, without doubt, complex and difficult.  Hogg J.  did not just go off on some insane frolic of her own.  She had evidence from eminent medical experts and heard argument from highly experienced advocates for the local authority, the parents and the child.  All of them were trying to do there honest best to sort out a situation which was not of their making.  If Ellie’s father had simply not attacked his child, or if the parents had not lied and manipulated, the problem would never have arisen.
 
Yes, we must look at what happened and what could have been done better, but this must not be a witch-hunt.  None of us are so wise and all-seeing that we always make the right decision.  The dilemmas faced by the judge and the other professionals involved, are not capable of being condensed into simple headlines, or even a few short paragraphs and even now the full complexity is not entirely known.  A little humility would not go amiss.

 

 
 

THE CHILDREN AND SOCIAL WORK BILL Part 1 – A CRITIQUE

 
 
The Children and Social Work Bill was introduced and received its first reading in the House of Lords on 19 May 2016, following swiftly from the Queen’s speech and the government’s white paper ‘Adoption: A Vision for Change’.  It was made clear in the white paper that primary legislation was only one part of the government’s overall plan for reform and the legislation must be read against that background.  The Bill also contains, in Part 2, the legislative proposals for the future regulation of the social work profession.
 
It is worth noting that, following the devolution of powers to the Welsh Assembly, many of the provisions of the Bill are only applicable to England.  This may give rise to some interesting problems where children, made the subject of care orders in Wales, are subsequently placed in England and vice versa.
 
Corporate Parenting Principles
The general duties owed by local authorities to children being looked after by them are currently set out in s22 Children Act 1989 (as amended).  These include a duty to safeguard and promote the welfare of the child, make services available, promote the child’s educational achievements and ascertain the wishes and feelings of the child, his parents and various others.
 
Clause 1(1) of the Bill sets out a list of matters which a local authority must ‘have regard to’ when it is carrying out its functions.  It is unclear whether these are additional requirements or in substitution for s22. 
 
Clause 1(1)(a) requires a local authority in England to have regard to the need, ‘(a) to act in the best interests, and promote the health and well-being, of those children and young people’.  Since the Bill only requires the best interests of the child to be a matter to which the local authority has regard to, logically (if somewhat worryingly), it would seem to permit an authority to conclude that there are other factors which, on balance, persuade it to act in a manner not, in the child’s best interests.  Moreover, since there is nothing in the Bill to suggest that s22 of the Children Act is to be repealed or amended, the provisions, certainly insofar as they apply to children under 18 years and looked after by the local authority, seem inconsistent and a recipe for confusion.
 
It is possible that the clue is to be found at clause 1(2) of the Bill, where the duties are to apply, not only to a looked after child within the meaning of s22(1) Children Act 1989, but also to care leavers aged under 25 years.  It would be understandable if a lower level of duty applied to care leavers however, if that is the intention, a better course would surely be to leave a coherent set of principles in the Children Act for looked after children, whilst having separate provisions for care leavers. 
 
In relation to looked after children the duties of the local authority are difficult to reconcile with the court’s duty under s1(1) of the Children Act.  It would be somewhat bizarre if the child’s welfare was of a higher importance when a decision was made in court than when the local authority has to decide the question.
 
The clause, it is submitted, would be significantly improved, by the deletion of the words ‘have regard to the need’ from clause 1(1) so that there was a much simpler and clearer duty;
 
 
(a)  To act in the child’s best interests
(b)  Encourage the child to express their wishes and feelings
(c)  Take those wishes and feelings into account
(d)  Help the children access and use services
(e)  Promote aspiration
(f)   To ensure the child’s safety and stability
(g)  Prepare the child for adulthood and independence.
 
Since these are the things we would expect a child’s natural parent to do, why should it be any different for a corporate parent? Even with that it is hard to see how the provisions would substantially differ from s22 of the Children Act.
 
At subsection (4) there is a further duty to have regard to any guidance given by the Secretary of State ‘as to the performance of the duty under subsection (1).  Guidance can play a valuable part in legislation of this kind and has been very important in the operation of, for example, the Children Act.  What is of concern is that this guidance is coming from a government with an almost evangelical belief in the benefits of adoption which is not shared by most practitioners in the field, who would say that adoption is simply one option.  The only thing which matters is finding the right option for this individual child.  This undercurrent of leaving scope for subsequent unilateral ‘soft legislation’ by the Secretary of State is something which runs through much of the Bill.
 
Viewing the provisions from a purely practical lens, one has to ask, what we are to understand from this being in a separate sub-clause, rather than in with all the other factors in clause 1(1).   Does the guidance trump the other factors, or do we read the guidance subject to those overriding factors? The Bill, in its current form does not offer any help on this.
 
Services for Care Leavers
If anyone was hoping for changes to the, often, rather forlorn lot of care leavers, clauses 2 to 7 will come as a disappointment.  There is little in the way of new services and support, only a requirement to publicise currently available services (if any).  Clause 3 provides that a former looked after child between the ages of 21 and 25 can request a personal adviser and the authority must carry out an assessment of what existing services, advice and support may be appropriate.  No new services are proposed, only more information about the existing (already underfunded and overstretched) ones.
 
Care Orders
Section 15 of the Children and Families Act 2014 replaced the existing s31(3A) of the Children Act, which required the court to approve the care plan, with subsections (3A), (3B) and (3C).  Section 31(3A) of the amended Children Act provides that when deciding whether to make a care order the court is only required to consider (and approve) ‘the permanence provisions’ of the s31A care plan.  What constitutes the permanence provisions is set out in s31(3B).  Clause 8 of the Bill replaces the current form of subsection (3B) with an extended form which adds a requirement to also consider the provisions in the plan dealing with the impact on the child of any harm suffered, the current and future needs of the child and the way in which the plan would meet those needs. 
 
The provisions are unexceptional in themselves, although it may be argued that they are unnecessary.  Insofar as they reflect what any sensible court, local authority or guardian would be thinking about when looking at a potential placement, the provisions cannot sensibly be opposed.  Even though nothing is really achieved.
 
Why then, were they felt necessary, and do they achieve what the government had in mind? Here, regrettably, the draftsman of the Bill seems to have missed his mark by a country mile.  The provision’s origins lie in paragraph 3.14 of ‘Adoption: A Vision for Change’.  In that, the government said that it was going to amend the Children Act to ensure that when local authorities and courts were considering ‘the best permanent option for the child at the end of care proceedings’, account should be taken of whether the different placements were sufficient to meet the particular needs of that particular child.  This concern stemmed from the mistaken view that the making of a supervision order with a special guardianship order indicated that there was something inherently ‘risky’ about the placement.  The flaw in the drafting of clause 8, is that by addressing the issue through s31, these new provisions will only apply when the court is considering whether to make a care order and it will not be required to consider them if it is, instead, invited to make a child arrangements order or a special guardianship order.  This seems surprising, as it was precisely these orders that the government felt were not meeting the needs of the child who might be better off being adopted.
 
Adoption and Children Act 2002
There had been concern expressed at para 3.16 of the white paper that the ‘rights of prospective adopters’ were not explicitly dealt with in the welfare checklist in section 1 of the Act.  Hence, there was concern from the government that the relationship which a child had developed with potential adopters was not given statutory acknowledgement when, for example, there was an application for permission to defend an application for adoption.  This view of the existing law was always wrong. 
 
The framing of the initial proposals in terms of the ‘rights’ of the potential adopters is unhelpful, reducing the child to the status of a chattel to be competed for.  In relation to children, adults have responsibilities; it is the child who has rights.  Essentially, the right to demand that we, the adults, fulfil our responsibilities.
 
It is very difficult to see what the new provisions in clause 9 of the Bill add to what is already the law, applied every day in the Family Court, sitting the length and breadth of the country.
 
Section 1(4)(f) of the 2002 Act requires the court to take into account;
 
‘the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant’.  (emphasis added)
 
Such person may well be a potential adopter.  The issue was therefore already foreseen and adequately dealt with in the original legislation.  The amendment adds nothing to it.
 
Additionally, where a child has been with potential adopters for a significant period of time, the child will have acquired a family life with those potential adopters which the Human Rights Act compels public authorities to respect.  It can only be interfered with in accordance with the law and as is necessary in a democratic society for a legitimate purpose.
 
Even if the Human Rights Act were to be repealed, the welfare principle in section 1(2) of the Adoption and Children Act 2002 would compel the court to place great weight on the impact, on an already damaged child, of removing them from a home where they had begun to settle and attach.
 
The approach is clearly shown by the dicta of Thorpe LJ in Re W (A Child) [2010] EWCA Civ 1535 where the learned judge explains that ‘the judge must have great regard to the impact of the grant of permission on the child within the context of the adoptive family.’
 
Child Safeguarding Practice Review Panel
Clauses 11 to 14 of the Bill deal with the establishment and running of a new body, the Child Safeguarding Practice Review Panel.  It will be almost exclusively the creature of the Secretary of State.  The Secretary of State ‘may make any arrangements that he or she considers appropriate for the establishment of the Panel in accordance with this section’ (clause 11, inserting a new s16A into the Children Act 2004). 
 
The Chair and members of the Panel will be appointed by the Secretary of State and serve, to all intents and purposes, at his or her pleasure.  A proposed new section 16B of the 2004 Act sets out the functions of the Panel, which are to ‘identify serious child safeguarding cases in England which raise issues that are complex or of national importance’.  Where such cases are identified they will be reviewed under their supervision, although, it seems, not by them directly. 
 
The Panel will appoint a reviewer and oversee the preparation of a report which will be published ‘unless they consider it inappropriate to do so’.  Where the report is not published ‘they must publish any information relating to the lessons to be learned from the case that they consider it appropriate to publish.  There is a significant degree of hutzpah involved in an administration, which has persistently berated what they chose to describe as ‘secret courts’, establishing the Secretary of State’s personal and apparently, secretive, inquisition for such publically important issues.
 
Local authorities will be obliged to notify the Panel of all cases involving the death of or serious harm to a child who is either looked after or where the harm is suspected to have been caused by abuse or neglect.
 
Different Ways of Working
Clauses 15 to 19 of the Bill have the stated purpose in clause 15(1) of enabling ‘a local authority in England to test different ways of working with a view to achieving better outcomes under children’s social care legislation or achieving the same outcomes more efficiently.’
 
Reading on, we learn what these tests will comprise.  The Secretary of State is authorised to make regulations to either exempt a local authority from ‘a (meaning “any”) requirement imposed by children’s social care legislation’ or to modify the way in which a requirement applies to a particular local authority.  Where the provisions to be suspended are contained in secondary legislation this can be done by the negative resolution procedure where the Secretary of State makes a regulation, effective without any parliamentary scrutiny, unless there is subsequently a resolution in either House to annul it.  Where it is proposed that primary legislation be suspended the draft statutory instrument must be approved by both Houses of Parliament.
 
The maximum duration of such a suspension is stated to be 3 years, but in fact the Secretary of State can extend that period to a total of 6 years by further regulations.
 
Clause 19 of the Bill defines what legislation may be suspended.  At first glance, the list seems rather short.  This is deceptive.  The first item in the list is ‘any legislation specified in Schedule 1 to the Local Authority Social Services Act 1970 so far as relating to those under the age of 18’.  Amongst the statutes to be found in the schedule (which has been regularly updated) are the Children Act 1989; Adoption and Children Act 2002; Mental Capacity Act 2005; Children and Young Persons Act 2008 and the Legal Aid and Sentencing of Offenders Act 2012, insofar as it relates to a child remanded into local authority accommodation.  In addition to these, the Secretary of State can draw up regulations to suspend the Children Act 2004 and, without needing parliamentary approval, any secondary legislation made under any of those statutes.
In my view, this is legislation of real constitutional significance.  The power to suspend statutes is something which you might expect to encounter during time of war, or other great national emergency.  To propose the use of such arbitrary powers in order to conduct what can only be described as ‘experiments’ is a matter which should cause very real concern.
 
What is Missing
A provision which would have done more than any of the above to promote child welfare and safety would have been a very simple clause which stopped the 26 week clock running if the care plan had evolved into one for placement under a special guardianship order.  It is abundantly clear that social work practitioners across the country worry that these assessments are being carried out with indecent haste, simply to comply with the 26 week time limit in s32(1)(a)(ii) Children Act 1989 (as amended).  The assessment of special guardians for children emerging from care proceedings deserves to be as careful and thorough, as would be the case if the child were to be adopted.  The children themselves deserve this level of care.  The additional requirements imposed by the 2016 regulations simply require more to be done in the same amount of time and only encourage a superficial approach. 
 
Conclusions
Part 2 of the Bill deals with the proposed future regulation of social workers and would make social workers the only profession subject to direct regulation and control by the government of the day.  That is something which deserves a separate treatment.
 
Part 1 of the Bill is a deeply worrying piece of legislation.  It is of real concern for two principle reasons.  The first is the constant theme through the Bill of drawing powers to the Secretary of State.  That in itself, in a constitution which depends upon checks and balances, would be reason enough to urge detailed and critical scrutiny by the legislature.  Once the powers are given, our legislators may find them hard to take back and very difficult to control.
 
This fear is compounded when one realises that these enormously wide and sweeping powers are to be put into the hands of an administration which has an almost evangelical belief in the efficacy of one solution (adoption) over all others.  A simplistic and extreme belief which does not seem to be shared by any respectable body of academics or practitioners
 
The second issue is that the legislation appears to originate from an administration with apparently little or no real understanding of the current law relating to children.  As shown above many of the provisions are ineffective, meaningless or just plain inexplicable.  It is an appallingly badly drafted Bill.  Parliament can always decide to change the law.  That is what democracy is about.  It is however, surely not too much to ask that proposers of change should start from a clear understanding of what the current law actually says, so that we end up with something that is at least comprehensible and capable of being applied in practice. 
 

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