Home > News Contacts to NSPCC helpline rise 12 per cent The NSPCC helpline received nearly 73,000 calls and emails from adults worried about a child in 2018/2019 – and referred almost half on to other agencies including the police and social services. The helpline hears from worried adults every day and night of the week, with concerns ranging from child neglect to sexual, physical and emotional abuse. There has been a 12 per cent increase in the number of contacts to the helpline from adults concerned about a child's wellbeing, and an 11 per cent jump in the contacts about sexual abuse in the past year. For more information about the helpline, click here. 22/9/19

Summary: Here, we have an application for permission to appeal with appeal following immediately after. The proceedings were ongoing in respect of three children, who were made parties to the proceedings. Findings had been made against father (“F”) insofar as he and his family having been abusive to M, including a finding that F did not intervene to prevent the children being verbally abusive to M in his presence. It was also stated that a Cafcass officer had concluded that the children had aligned themselves with F and been exposed to adult influence. In August 2016, a final order was made that provided only for indirect contact as between M and the children. M was not accepting of the order made, and identified a family psychotherapist who was understood to have “considerable experience” in intractable contact cases. M applied pursuant to Part 25 FPR to release papers to the psychotherapist to assist with her assessment. The permission to release papers was recorded in a court order on the basis that it would enable the psychotherapist to “undertake a paper-based assessment as to whether the children and the parties can be assisted therapeutically…” It was made clear on the face of the order that the psychotherapist was not to assess the children at this stage. A few months later in January 2018, and following the psychotherapist’s initial assessment, the court made a follow-up order permitting the psychotherapist to observe M and the children in one session of direct contact, to provide an up to date report as to the progress made by the parties and the children and to include recommendations for any future work / progression of contact between the children and M. A third direction was made on 9 May 2018, as follows: “a psychotherapist to file and serve a report as to the progress made by the parties and the children in respect of the therapeutic program, to include recommendations for any future work and progression of the children’s contact with their mother, shall be extended to 26 June 2018.” The psychotherapist filed a report recommending that the children start to spend alternative weekends with M, with a Plan B suggestion that the court consider a transfer of residence. Following the report, the parties and psychotherapist agreed that psychotherapist would meet the children and M together. The meeting was unsuccessful, following which the psychotherapist communicated to both parties via email that she felt the F lacked insight, was conveying his negative views about M to the children and which they now held about her both in respect of the present and the past. She went on to recommend a transfer of residence, to enable the therapeutic work to be undertaken. This was followed by the preparation of a third report, which had not been expressly authorised by the court. On the back of the email and report, M applied for a child arrangements order for the children to live with her. F applied for the children to be joined, disputing the psychotherapist’s report and recommendations for transfer of residence. At the pre-trial review, His Honour Judge Levy concluded that the court’s January order, which gave permission for a second report, was in substance authorising the obtaining of a therapeutic recommendation and thus non-Part 25 report. Held: M’s application for permission to appeal dismissed on the basis that the appeal had no realistic prospect of success. The judge at first instance’s decision that the psychotherapist would be an expert of fact, but not an expert of opinion, would be maintained. The reports could feature in the bundle in so far as observing what happened in the sessions, but there would be no requirement for live evidence. The task of the psychotherapist was therapeutic and to recommend further therapeutic work – the substance of the work was therefore in relation to therapy, as opposed to an expert assessment. The report was therefore a factual report in terms of its forensic status as opposed to a part 25 expert report. The third and final report was prepared at the parties’ request without any authorisation by the court. That report could only be considered as a report from a treating therapist (per para. 45). Comment: The judgment raises some interesting practice considerations. The appellate judge was clear to point out that “Part of the process of family litigation in the modern era is vigorous case management by allocated judges who have responsibility for the case they are managing. This court can intervene only if there has been a serious error, if the case management judge has gone plainly wrong; otherwise the entire purpose of case management, which is to move cases forward as quickly as possible, will be frustrated, because cases are liable to be derailed by interlocutory appeals.” The threshold for intervening in a case management decision is presumably therefore higher than for hearings involving the substantive application. What is the difference in reality between evidence obtained pursuant to part 25 and other “expert” evidence? This boils down to the weight and authority the court can place on expert evidence obtained pursuant to Part 25 FPR 2010. Greater weight can be attributed to the evidence of an expert who has complied with the rigours of the Part 25 process. Always be mindful of what you are actually seeking from an expert, and its purpose, and thereafter of how things evolve. Ensure the status of the expert is set out expressly on the face of the court order, and in the letter of instruction, and also state clearly the intention/purpose behind any follow-up work, even if all the parties consent. In this case, no follow-up letter of instruction was sent to the expert setting out precisely what was required and for what purpose. The standard Part 25 rubric in a letter of instruction does not automatically mean the report is to be considered Part 25. The judgment suggests that it may be possible to apply retrospectively to seek to rely on a report as a Part 25 report – if there is any ambiguity, don’t leave it to chance! Careful thought should be given to letters of instruction. The expert was considered by the first instance judge to have strayed beyond their remit. Ordinarily, if an expert is being asked to comment on something as significant as a change of residence, it must be contained in the letter of instruction, together with a list of appropriate questions. In determining the nature of the assessment, the judge referred to the position in public law cases under s.38(6) Children Act 1989. An assessment will only fall within the parameters of that section if the assessment is the true dominant purpose of the report and therapy a secondary component. Whilst such assessments are not entirely analogous to the sorts of private law assessments it does illustrate the distinction that should properly be drawn between part 25 expert assessments and the conducting of therapeutic work and reporting on the outcome (per para. 31). With all the above said, if the trial judge does not agree with the court taken by HHJ Levy, and the view of Mr Justice Williams, it is open to her to deal with the matter differently!

In brief: Appeal allowed in circumstances in which a mother (“M”) alleged that the judge had been wrong to grant a father’s (“F”) application for permission to apply for a s.8 CA 1989 order during the life of a s.91(14) CA 1989 order without hearing from her, or receiving representations on her behalf. The judge at first instance had erred in his approach. The correct approach is as set out in Re S [2006] EWCA Civ 1190, from which the following guidance may be distilled: the application for permission to make an application under s.8 CA1989 should in the first instance be considered on the papers, or at an oral hearing that can be without notice to the respondent, particularly in “certain sensitive circumstances…a case in which the stress of previous litigation has destabilised the family, and in which the fragile capacity of the resident parent may well be adversely affected by the service of an application for permission to apply”. If the applicant seeks an oral hearing, it should not be denied. If the application is without merit, then it can be dismissed at this stage, and the potential respondent may well have been spared any engagement with the process. If, however, the application shows sufficient merit (i.e. the application has demonstrated a prima facie case that there is a renewed need for judicial investigation on the basis that he has an arguable case), the court should list the application for an ‘on notice’ hearing to allow the respondent to make representations (per para. 40). The type of reason envisaged might be a material change of circumstances, or an applicant who can demonstrate the development of some insight and access to appropriate therapy or support. The judgment demonstrates the courts’ attempts in these applications to take into account what are often inevitably difficult historic circumstances and to balance the opportunity for both parties to be heard, if appropriate. This is a wish to not necessarily involve a respondent prematurely since the courts are mindful of the potential stress to the resident parent and any children – particularly if the application is unmeritorious or unlikely to succeed. In this case, M had in any event been notified of the hearing in error by the children’s guardian, and so was in the worst position of knowing about F’s application, but not having been afforded the opportunity to make representations.

Musings of an English family lawyer.

Our articles are written by experts in their field and include barristers, solicitors, judges, mediators, academics and professionals from a range of related disciplines. Family Law provides a platform for debate for all the important topics, from divorce and care proceedings to transparency and access to justice. If you would like to contribute please email editor@familylaw.co.uk. Spotlight Children and Same Sex Families Children and Same Sex Families: A Legal Handbook More info View All A day in the life Of... Kaleel Anwar Senior Solicitor Read on International child abduction, red notices and the role of INTERPOL Date:10 SEP 2019 On 25 October 1980, the world’s greatest powers entered into a unanimous international agreement. The subject: Discussing methods of securing the prompt return of children wrongfully removed to another Contracting State. In the context of family law in the UK and under the Child Abduction Act of 1984, “…a person connected with a child under the age of 16 commits an offence if he takes or sends a child outside of the United Kingdom without the appropriate consent.” That is to say, it is indeed a criminal offence for a parent to take a child out of the UK without official consent from the other parent. It is important to note that the law assumes both parents have Parental Responsibility over the child. That is the stipulation that makes the removal of a child to another area of the UK lawful even without seeking the consent of other persons with Parental Responsibility.  Article continues below... Hague Conference Guides to Good Practice on the Civil Aspects of International Child Abduction, The The fourth volume of the official Hague Conference... £33.99 View product Child and Family Law Quarterly "The final professional word for the practitioner... £80 View product 1996 Hague Convention on the Protection of Children, The A comprehensive guide to the complexities of the... £58 View product The ubiquity of international child abduction has grown exponentially, and many families have been torn apart. A lot of this is down to globalisation which has facilitated the removal of children across borders when custody battles turn acrimonious. The function of Interpol is as follows: 'Our role is to enable police around the world to work together to make the world a safer place. Our high-tech infrastructure of technical and operational support helps meet the growing challenges of fighting crime in the 21st century.' The key point to note here is that Interpol is essentially an alert system. It sounds international alarm however it cannot make arrests. Unlike what is usually depicted on Hollywood films where armed police swoop in and arrest criminals, Interpol have no agents who are allowed to make arrests. The interface between Interpol and parents is composed of Red Notices. As described by Interpol, the purpose of a Red Notice is 'to seek the location and arrest of wanted persons with a view to extradition or similar lawful action'. A Red Notice is the closest instrument to an international warrant for arrest; however it does not amount to such. For persons listed in the notices, Interpol circulates their names to member countries and they are placed on lookout lists. To summarise, through Interpol, national law enforcement authorise in member countries will cooperate in the location and apprehension of international fugitives. Through Interpol, it becomes increasingly likely that international authorities will cooperate to pursue your case.  Categories: News Related Articles 15 MAR 2007 28 AUG 2007 3 AUG 2010 Authors: Matthias Mueller 2 APR 2014 Authors: Marianna Michaelides 10 APR 2019

The case K v L Re M, N is a typical child arrangements case, giving litigants a real flavour of what they can expect when they go to court.

Home > News New funding to protect child abuse victims and track down offenders A £30 million funding boost will equip law enforcement with pioneering new tech and capabilities to track down more paedophiles operating online and safeguard children who have been abused, the government has announced. The additional investment to tackle child sexual exploitation and abuse (CSEA) will help target the most dangerous and sophisticated offenders who operate on the dark web. Statistics from the National Crime Agency (NCA) show that last year 2.88 million accounts were registered globally across the most harmful child sexual abuse dark web sites, with at least five per cent believed to be registered in the UK. To tackle this threat, further investment will be made in the UK's world-leading Child Abuse Image Database (CAID), a resource that provides law enforcement agencies with effective tools to search seized devices for indecent images of children, reducing the time taken to identify illegal images of children and increasing the ability to identify victims. The new funds being made available will explore adding enhanced Artificial Intelligence (AI) tools to the system, including voice analytics and age estimation. For the government announcement, click here. 19/9/19

The father lived in Oman, the children and mother in England. The father was in breach of orders made in Matrimonial and Family Proceedings Act 1984 proceedings. The mother applied for a child arrangements order to the effect that the children live with her. The court in Oman had ordered that custody of the children should be removed from the mother, despite the father having previously undertaken not to issue proceedings in Oman. Holman J was in no doubt that it was in the best interests of the children to continue to live in England with their mother. There was no possibility of them visiting Oman, due to the risk of them not being returned. Any contact with the father in England would have to occur while he was sober, and in the presence of a third party to prevent abduction. Judgment, published: 20/09/2019 Topics Share

This is a talk delivered by Sarah Phillimore at the Families Need Fathers conference in London on September 14th 2019 The abstract concept of ‘Justice’ is often portrayed as the Greek goddess Themis, usually depicted holding a sword and scales. This represents her ability to cut fact from fiction with no middle ground and the need to be balanced and pragmatic. However the blindfold is a modern addition.  It symbolises that justice must be blind i.e. applied equally to all who come before her. In recent years there appears to have been an orchestrated campaign against both the scales and the blindfold, when it comes to issues of violence in intimate relationships before the family courts.  For the first time in my 20 years now as a lawyer, I see not merely journalists and campaigners showcasing their lack of understanding of law and procedure – I see them joined and supported by actual politicians and actual ‘Inquiries’ established by actual Government departments. I and others have commented critically about this elsewhere If this sounds harsh I am sorry. I do not say this to diminish the suffering of victims of abuse. Violence in relationships is common and is a blight on our society. I agree that a parent who is abusive to anyone, let alone their child’s other parent, is not a good parent and they should not have unfettered access to a child without some clear evidence that this is safe.  I agree that women are more likely to be the victims of violence at the hands of male partners. Further, I would be surprised to find anyone who doesn’t think it outrageous that people risk being cross examined directly by those who may be using the court system to further abuse and humiliate. Happily, in my experience at least this is not commonplace – Just out of interest – how many people in this room have either questioned directly an ex partner in court or been questioned directly by an ex partner? We must be able to say the names of those children who have died painful and frightening deaths at the hands of their adult carers, when the child protection system failed to ask the right questions or properly assess risk – Ellie Butler, Alexa-Marie Quinn, Peter Connelly, Victoria Climbie, Elsie Scully-Hicks Daniel Pelka Even this short list is too long. When the child protection system fails it is their faces that we must see.               But. It is clear that children risk being hurt and killed by men AND women. Even in that short list above shows women are capable of hurting and killing children, or of deliberately lying to protect the men they know are hurting them. The only fool proof way to prevent children from pain and suffering is to prevent them from ever being born.  There is no system that can protect against all risk. We need to do better – and I will discuss today how we can do that – but the answer to a system that you find unsatisfactory and potentially unfair is NOT to agitate to make it even more unsatisfactory and unfair. I don’t agree the current crop of campaigners will achieve anything to make victims and their children safer. The MoJ Inquiry and the Sunday Mirror ‘campaign’ etc etc etc is a call to examine or change laws which do not actually exist.  I am repeatedly told via social media that we ‘must’ see a change to the law that permits ‘snap decisions which promote contact at all costs’. This is not, never has been and never will be the law. To campaign on such a false premise is a waste of time and energy. More sinisterly, the ‘changes’ which people want to see, appear to involve very significant challenge to the integrity of both the rule of law and due process. by describing complainants as ‘victims’ at the very outset. Assuming that these ‘victims’ are women By inviting under the campaigning umbrella a number of women who have been found to have caused very serious harm to their children, yet rejecting those findings as yet more ‘failings’ of the family courts. [For comment on Victoria Haigh and the very many judgments against her, see this post from The Transparency Project. ] Seriously? And when do you say these ‘abusers’ are identified? Prior to any finding or admissions? https://t.co/JtoqSPTUzw — Sarah Phillimore (@SVPhillimore) September 1, 2019   I believe Brexit has unleashed something very harmful into our attempts to talk about serious issues; experts are disdained, facts are distorted and feelings are what matter. This joined forces with another trend – the identification of ‘complainants’ as ‘victims’ before any allegation is either accepted as true or found to be so. This first emerged in the criminal justice system; tragically as a very well intentioned effort to combat some of the truly disgusting treatment meted out by police and lawyers to those who complained about sexual assault. However, the law of unintended consequences continues to operate, and as Richard Henriques warned and the the trial of Carl Beech showed, to designate people as ‘victims’ at the very outset of any investigative procedure, has the potential to cause serious and damaging consequences for the integrity of what follows. The time has long gone for those of us who are deeply troubled by all of this to attempt to reclaim the narrative, to restore the position that words have meaning. They are important. Because language shapes thought – not the other way around. There are two fundamental and serious problems in using the word ‘victim’ to describe a complainant whose allegations have either not been proved or have not been accepted. It is unfair to all who participate in court proceedings. setting up a complainant as a ‘victim’ at the inception of the court process gives that person a wholly unrealistic view of how their evidence may be treated in an adversarial court process. It is not enough to simply assert something – you must prove it. Treating one party as a victim prior to any findings made about the factual basis for that status, risks undermining the fairness of the proceedings and casting the respondent as a ‘villain’ at the outset. So I will attempt today to go back to basics. What is the rule of law? What is ‘due process’? And why are they important? What is evidence? And how does the family court use it? How should you present it? Where is the system failing and what can we do to make it better?   What do we mean by the ‘rule of law’ and ‘due process’ ? The Secretary-General of the United Nations defined the rule of law in this way: a principle of governance in  which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.” (Report of the Secretary-General: The rule of law and transitional justice in conflict and post-conflict societies (S/2004/616). The rule of law is one of six of the key Worldwide Governance Indicators (The others being Voice & Accountability, Political Stability and Lack of Violence, Government Effectiveness, Regulatory Quality, and Control of Corruption). ‘Due process’ is under the umbrella of the Rule of Law: procedural due process – legal proceedings which are carried out in accordance with established rules and principles; and substantive due process – legal proceedings should not result in the unfair, arbitrary or unreasonable treatment of an individual. If you are in any doubt as to the importance of the ‘rule of law’ or due process, visit and spend some time in one of the countries which doesn’t have either.   So what IS evidence? And how does the court treat it? I make no apology for going back to basics, such is the staggering level of misinformation  I am seeing on a daily basis from those who purport to have positions of authority and credibility. Evidence is anything that you experience, read or are told that causes you to believe something happened. It is the information used in court to try and prove something. It can be obtained from documents, objects or witnesses. Establishing the evidence in a case allows you to ask ‘what does it prove?’. A thing that is proved or accepted then becomes a fact which is relevant to the outcome of the case.  We need to know the facts in order to decide what consequences follow or what the risks are and how they are to be managed. The Family Justice System (FJS) puts proof of facts at its heart. In 2013 Mr Justice Baker addressed a conference asking  – how can we improve decision making in the family courts? He identified the twin evils of delay and cost which impact on the quality of decisions made. He commented on the alternatives to litigation, such as mediation or arbitration that might work to mitigate those evils. But he was also clear that alternatives to litigation could never be complete substitutes for litigation. But there will always be a substantial number of disputes in which a forensic process is unavoidable, a process that involves consideration of allegations and cross-allegations made by the parties, a judicial analysis of the evidence, the makings of findings and an assessment of the consequences of those findings. There are some people who genuinely believe this can be done by some sort of committee without involving lawyers at all. Such views are profoundly mistaken. This does not mean of course that our current system is without flaws. ‘Fact finding’ may sound simple but is anything but. The foocus on most law degrees is dissection of the lofty legal decisions of the superior courts – but when they hit the ground in practice, the vast majority of legal endeavours will involve the identification and processing of facts. Understanding how to identify and apply facts in court is complicated.  Jerome Micheal, the author of ‘The nature of judicial proof: An inquiry into the logical, legal, and empirical aspects of the law of evidence’ summarised his view of the ‘theoretical basis of the arts of controversy’ in 1948, pointing out that there are very many things we need to appreciate when we approach evidence in a court. Among others, we need to understand probability, causation, the distinction between direct or perceptual and indirect or inferential knowledge. We base much of our understanding on presuppositions about human nature and behaviour – these often change over time or as research develops – but we need some basic knowledge about how humans think and react. Judges often say findings of fact must be based on evidence, not speculation – Re A (A Child) (Fact Finding Hearing: Speculation) [2011] EWCA Civ 12) but as that case illustrates, the line between the two is not always clear or easy to find and obviously involves some subjective discretion form the decision maker. However, regardless of all the obvious imperfections of the fact finding exercise,  we have as yet, no other system to deal with contested allegations.  I am not sure what else could be suggested – we return to trial by combat? Or in the modern era presumably this will be ‘trial by Facebook’ – whoever can garner the most ‘likes’ and ‘shares’ or the biggest amount in their crowd funder will ‘win’. I have a horrible suspicion that this is exactly how some people think it should work, as we have seen in both the Minnock and Baldwin cases. But unless and until Parliament decides to dissolve the courts of law in favour of the courts of public opinion, we need to focus on what we have got.   The family court process Deciding what ‘weight’ attaches to the evidence will comprise a mixture of objective and subjective elements. Judges have a pretty wide discretion; it is not a ground of appeal that you didn’t agree with the judge’s decision. You have to show the judge was wrong – he or she took into account the wrong things or ignored the right things. Just because a Judge fails to explicitly mention a particular point, doesn’t mean the appeal court will allow your challenge to succeed. A useful example of this can be found in the case of A and R (Children), Re [2018] EWHC 2771 (Fam) where the Recorder was criticised for not making explicit reference to some parts of PD 12J. Family courts operate an ‘adversarial’ as opposed to ‘inquisitorial’ system. This means that the Judge can only decide the case that is in front of him or her. The Judge does not take on an investigative role. Evidence is presented to the court and challenged by the parties as ‘adversaries’ in the court process. Claims that we are in fact ‘quasi-inquisitorial’ seems to mean in practice to amount to little more but that lawyers are asked to tone down their combativeness a notch. The court must take into account all the pieces of evidence in the context of all other evidence, The civil standard of proof applies, which means facts must be proved ‘on the balance of probabilities’: If it is more likely than not that the thing happened it is proved – see Re B [2008] UKHL 35). This is known as the ‘binary system’ as there are only two options  – true or false. I appreciate that there is legitimate criticism of this, particularly given the low standard of proof and again I would like to see more official recognition of this, rather than the predominant congratulatory back slapping that the family courts have ‘discovered the truth’.  Over time rules of evidence developed, to attempt to make proceedings as consistent and fair as possible. For example, in most civil cases ‘hearsay evidence’ is not permitted – that is the evidence of those who tell the court, not what they know themselves, but what they have heard from others. A fundamental point of fairness is that if you don’t accept the evidence offered against you, you must have the ability to challenge it. Its obviously very difficult to challenge the words of someone not in court. For this reason if hearsay is accepted in family court proceedings, the judge must think very carefully about the weight to be attached to it.    Expert Evidence A particular bone of contention revolves around the use of experts – as these experts are often in the ‘soft science’ field of psychology.  I accept that the use of experts is not without controversy and I have seen a worrying lack of humility from some about the strength of their conclusions. However, it’s important to remember that ‘the expert advises but the court decides’ . Expert evidence is just one piece of a jigsaw that a judge needs to try and put together – it is rarely the entire answer to the case  – see Re T [2004] 2 FLR 838. As Professor Luthert commented in R v Harris and Others [2005] EWCA Crim 1980: It is very easy to try and fill those areas of ignorance with what we know, but I think it is very important to accept that we do not necessarily have a sufficient understanding to explain every case.  A judge does not have to accept an expert’s evidence but must explain why the evidence is not accepted. See the comments of Lord Justice Ward and Lady Justice Butler-Sloss in the case of Re B (Care: Expert Witnesses) [1996] 1 FLR 667 I accept we need a greater awareness of and willingness to challenge experts on the basis of confirmation bias or scientific prejudice but as barrister David Beddingfield comemented in 2013 –  this can be tricky  – see Expert Evidence – Another Chapter in a Continuing Story in Family Law Week: The expert, as we all know, is expected to give an opinion about the most significant issues in a case. A paradox underlies the use of all expert evidence: the reason an expert is required is that the decision-maker lacks the expertise of the expert and requires that expert’s help. How is that same decision-maker also competent tojudge the content of the expert’s evidence? How is the decision-maker to choose, for example between two competing experts, each using different methodologies beyond the ken of any non-specialist?   Practical problems in family cases – Documents versus words The uncontroversial ‘gold standard’ of evidence is the contemporaneous documentary record. And this is the fundamental reason why allegations about what did or did not happen in intimate relationships can be so difficult to prove in court, even on a low standard of proof. Many cases I have dealt with involve a bitterly fought battle between parents who make allegations each against the other which are starkly different. It is difficult to discern patterns of behaviour and very difficult to cross examine on a bare denial. Relationships, which may have endured over decades, may offer the court little evidence but the words of the parties themselves.  Not many of us – I hope – enter into a relationship expecting to keep a running log of all the bad behaviour of our partners. I was asked a very interesting question about this issue of ‘collecting evidence’ …. would it help to suggest that people keep diaries, records, photos, dates, times, places – particularly when there are already difficulties i.e. any statements may be seen to be more credible if they are detailed and based on contemporaneous notes? And my answer to that is ‘be careful’. You do run a risk that you may appear to be offering self serving or manipulated evidence. The courts are often very wary of recordings of arguments etc because of course it is difficult to know what happened immediately before the recording started. I have seen recordings and diary entries used with powerful effect but there is always a suspicion that such one party may have acted deliberately to antagonise the other in order to ‘collect evidence’ . I appreciate this is a very difficult position to be in – much abuse occurs behind closed doors and the abuser is able to present a very different face to those outside the relationship. But it remains an inescapable truth that the more serious the allegations you make, the less likely is any court to simply accept them, absent any supporting evidence – see for example the case of Sivasubramaniam v Wandsworth County Court & Ors [2002] EWCA Civ 1738. The complainant described events to the court in this way: … part of a long-running criminal conspiracy against him involving members of Wandsworth Borough Council solicitors, lawyers and the chief executive and the finance officer and their assistants, members of the Wandsworth police, doctors in the hospitals, social workers, local court officials, judges and the lessee occupying the flat below his. The conspiracy involved unsuccessful attempts to murder him … It had included impersonation of him, had involved the fraudulent termination of four sets of legal proceedings that he was conducting, including the two with which we are concerned, while he was detained under the Mental Health Act or under medication thereafter, and continued to this day. Unsurprisingly the court declared that no Judge would be able to accept such a version of events on one person’s word alone.     Gold Standard Evidence versus Witness Credibility The courts have said for a long time that the best way of testing witness credibility is to test witnesses against objective facts which are independent of their testimony. Lord Goff in Armagas Ltd v. Mundogas S.A. (The Ocean Frost), [1985] 1 Lloyd’s Rep. 1, p. 57: Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth. Lord Pearce in the House of Lords in Onassis v Vergottis [1968] 2 Lloyds Rep 403 at p 431: Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. It is clear that people who have been traumatised by abuse over many years can behave in ways that reflect that trauma. They may not be able to be clear or consistent in their account.  They may have been too afraid or too ashamed to have told any one else so have no police or medical evidence. Or they may worry about ‘rocking the boat’ and risking losing contact with their children. Exposure to gradually escalating abuse and intimidation can become numbing and appear ‘normal’ – the ‘boiling a frog’ principle. The massive problem for the court system however is that a tendency to be inconsistent or reveal crucial details at a much later stage is also strongly suggestive of someone who is lying. Therefore the credibility of witnesses in family cases is often of supreme importance. It really matters how you come across when you give evidence. The appeal courts often say that they are at a disadvantage when examining a challenge to the decision of the first court, as they don’t have the same opportunity to assess how people gave their evidence as well as what they actually said. I think there is a danger – of which the courts are aware – that too much or improper weight can be put on demeanour as an indication of credibility.  They are two very different things –  ‘demeanour’ is concerned with whether or not a witness appears to be telling the truth. It is usually unreliable and often dangerous to draw conclusions from demeanour alone. Is someone hesitant because they are lying or just naturally cautious? These problems are magnified where the witness is from a different country or culture than the Judge or is giving evidence through an interpreter. I accept that most of us still do have a view of how a ‘victim’ should present in court – particularly if that alleged victim is female, and I accept there is a risk that people who don’t fit the general stereotype of ‘victim’ – i.e. weak, timid, tearful – may find their accounts treated as less credible. The case of Excelerate Technology v Cumberbatch [2015] provides some useful discussion about how Judges assess credibility. It is determined by looking at the following issues. is the witness a truthful or untruthful person? If truthful, is he telling something less than the truth on this issue? if untruthful is he telling the truth on this issue? Not all liars lie all the time and motivations for lying can vary; see the Lucas direction. If truthful and telling the truth as he sees it, can his memory be relied upon? Is what is asserted so improbable that it is on balance more likely than not he was mistaken in his recollection?     What can we do to improve the situation? So – what do we do? I accept that court arenas are unpleasant places at the best of times. Attempting to establish the truth or otherwise of your experiences in an abusive relationship is very far from the best of times. The lawyers and judges must have a clear understanding of how to make proceedings as fair and efficient as possible: have clear understanding of the requirements of PD 12J – see below. Be wary of making any decision based on the demeanour of a witness or what a victim ‘ought’ to do make sure vulnerable witnesses have a safe place to sit and wait before the hearing starts make sure that issues of screens in court, video links and intermediaries are properly discussed in good time. be more willing to impose serious penalties on those who are found to have lied in their evidence list findings of fact as soon as possible and be prepared to take enforcement action as soon as it becomes clear the resident parent won’t accept the findings of the court What will help the parties? Understand the court process Understand the burden and standard of proof where ever you can – find some additional evidence that supports what you are saying. Are there any medical records or police reports? Did you say anything to a friend or family member at the time? Would they be willing to come to court and be cross examined about what you said? If you have nothing other than your words – that is still evidence but you must be careful to be as clear and consistent as you can. Set out your statement in short numbered paragraphs and go in chronological order. Include everything that you can remember. However, it has been my view for some time that the fundamental challenges to fair, efficient and humane processing of legal complaints about violence in intimate relationships are very little to do with the lawyers, the Judges and their lack of understanding or training. The real problems will require political will and a huge amount of cash to sort out. court buildings that are not fit for purpose – no or very few waiting rooms, no separate entrance, courts sitting in cramped rooms with very little space, inadequate technology to accommodate video links etc lack of judges and available court rooms to hear fact findings quickly – cases quickly become stuck and are allowed to drift. lack of judicial continuity which is detrimental to effective case management – see comments in the case of A and R (Children), Re [2018] EWHC 2771 (Fam) para 57 -61. lack of legal aid so that vulnerable witnesses may have be face being cross examined by their alleged abuser, the issues in the case are not identified and presented efficiently, litigants in person can’t afford to instruct experts etc, etc, etc. wider societal problems, such as lack of available safe and affordable housing so that the financially weaker partner finds it very difficult to leave an abusive relationship particularly if there are children involved. This is what we need to tackle. And I have to wonder why we are all so keen to be distracted by yet another newspaper campaign based on what seems to be a complete lack of knowledge or understanding of any of the issues I raise above. At the moment, the only people I can see who will benefit from all this are those who are pushing for Judges to be ‘trained’ – presumably by their own organisations and at significant cost. And a the elephant in the room will remain. Why do so many people behave so badly in intimate relationships? And why do so many people have so little self worth that they accept it or cannot recognise it until many years have passed and great harm has been done? What as a society are we going to do about this? is there anything ‘we’ can do? All I can say with certainty is that continued insistence on the FJS or any external agency to ‘fix’ the problems of cruel, unreasonable or otherwise dysfunctional people is doomed to expensive and emotionally harmful failure. And those who will suffer most, as they always do, are the children.     APPENDIX Definitions in Practice Direction 12 J Domestic abuse” includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse. Domestic abuse also includes culturally specific forms of abuse including, but not limited to, forced marriage, honour-based violence, dowry-related abuse and transnational marriage abandonment; “coercive behaviour” means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim; “controlling behaviour” means an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour; “development” means physical, intellectual, emotional, social or behavioural development; “harm” means ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another, by domestic abuse or otherwise; “health” means physical or mental health; “ill-treatment” includes sexual abuse and forms of ill-treatment which are not physical   Para 5 what must the court do? dentify at the earliest opportunity (usually at the FHDRA) the factual and welfare issues involved; consider the nature of any allegation, admission or evidence of domestic abuse, and the extent to which it would be likely to be relevant in deciding whether to make a child arrangements order and, if so, in what terms; give directions to enable contested relevant factual and welfare issues to be tried as soon as possible and fairly; ensure that where domestic abuse is admitted or proven, any child arrangements order in place protects the safety and wellbeing of the child and the parent with whom the child is living, and does not expose either of them to the risk of further harm; and ensure that any interim child arrangements order (i.e. considered by the court before determination of the facts, and in the absence of admission) is only made having followed the guidance in paragraphs 25–27 below. In particular, the court must be satisfied that any contact ordered with a parent who has perpetrated domestic abuse does not expose the child and/or other parent to the risk of harm and is in the best interests of the child. Para 8 In considering, on an application for a child arrangements order by consent, whether there is any risk of harm to the child, the court must consider all the evidence and information available. The court may direct a report under Section 7 of the Children Act 1989 to be provided either orally or in writing, before it makes its decision; in such a case, the court must ask for information about any advice given by the officer preparing the report to the parties and whether they, or the child, have been referred to any other agency, including local authority children’s services. If the report is not in writing, the court must make a note of its substance on the court file and a summary of the same shall be set out in a Schedule to the relevant order. How do we deal with tension around open justice and protecting the vulnerable? Para 10: If at any stage the court is advised by any party (in the application form, or otherwise), by Cafcass or CAFCASS Cymru or otherwise that there is a need for special arrangements to protect the party or child attending any hearing, the court must ensure so far as practicable that appropriate arrangements are made for the hearing (including the waiting arrangements at court prior to the hearing, and arrangements for entering and exiting the court building) and for all subsequent hearings in the case, unless it is advised and considers that these are no longer necessary. Where practicable, the court should enquire of the alleged victim of domestic abuse how best she/he wishes to participate. Why are fact findings important – para 16 The court should determine as soon as possible whether it is necessary to conduct a fact-finding hearing in relation to any disputed allegation of domestic abuse – (a) in order to provide a factual basis for any welfare report or for assessment of the factors set out in paragraphs 36 and 37 below; (b) in order to provide a basis for an accurate assessment of risk; (c) before it can consider any final welfare-based order(s) in relation to child arrangements; or (d) before it considers the need for a domestic abuse-related Activity (such as a Domestic Violence Perpetrator Programme (DVPP)). Para 40 In its judgment or reasons the court should always make clear how its findings on the issue of domestic abuse have influenced its decision on the issue of arrangements for the child. In particular, where the court has found domestic abuse proved but nonetheless makes an order which results in the child having future contact with the perpetrator of domestic abuse, the court must always explain, whether by way of reference to the welfare check-list, the factors in paragraphs 36 and 37 or otherwise, why it takes the view that the order which it has made will not expose the child to the risk of harm and is beneficial for the child.

Home > News New private law cases received by Cafcass in August decreased by 3 per cent year-on-year Cafcass received a total of 3,817 new private law cases in August – 3.3 per cent (131 cases) lower than the same month last year. This is the first month since September 2018 in which new cases have declined when compared with the previous year. For the month-by-month figures, click here. From that page, a further link shows private law case demand and number of subject children by DFJ area. 15/9/19

Home > Judgments R-B (A CHILD) [2019] EWCA Civ 1560 Successful appeal against care and placement orders made at an IRH as the judge made inappropriate comments which caused the mother to change her position and because the judge failed to give a proper, fully-reasoned judgment. This was an appeal against care and placement orders made in respect of J, who was nearly 4 months old at the time. The appeal was brought by his mother, S, who had been only 16 years old when she gave birth to J. S and her siblings had been categorised as children in need and also the subject of child protection plans under the category of neglect. In light of these concerns, the local authority made J the subject of a child protection plan during S's pregnancy and issued care proceedings when he was a few days old. At the first hearing, an interim care order was made on the basis of a plan that provided for S and J to be accommodated together in a mother and baby foster placement while assessments were carried out of S's capacity to care for J. S and J moved placements on four occasions. Two of the moves were apparently necessary as the carers had pre-booked holidays and the other two were apparently because S said she was unhappy in the home. In the course of those placements, various concerns were raised about the quality of care which S was providing to J. There was also a concern about S taking J to the family home and exposing him to the risk of harm there and allegations that on a number of occasions she had left J in the care of the foster carer for several hours, contrary to the arrangements set out in the care plan. As a result of those concerns, the local authority imposed a further restriction that S would not have unsupervised contact with J. There was a PAMS assessment of S which concluded that, despite the support she had received in the placements, she had failed to demonstrate that she had the capacity to care for J or to prioritise his needs. The local authority concluded that J should be placed for adoption and filed a care plan in these terms with an application for a placement order. The care plan for J was supported by the children's guardian. There was a psychological assessment of S which concluded that her full-scale IQ was within borderline range. She was said to have the immaturity and inexperience of many girls of her age from deprived backgrounds. She was assessed as having the capacity to conduct proceedings and to give instructions, although the psychologist expressed a degree of caution about this, observing that "provided her solicitor is suitably experienced in and mindful of these considerations, and provided matters are discussed patiently and in simple terms, [S] should be able to provide appropriate instructions". The matter was listed for an IRH. In the position statement filed on S's behalf before the hearing, it was set out that she was opposed to the local authority's plan. She accepted some of the allegations relied on in support of the argument that threshold under section 31 was crossed and denied others. The main point that was raised was the fact that she and J had moved foster placements on four previous occasions, which was clearly not conducive to her learning. However, she said that she had been a lot more settled in the current placement, where she had been getting on really well with her carer. The IRH came before HHJ Black. The following exchanges took place as set out in the appeal judgment: 7. …After the introduction, the judge addressed the mother's counsel. She referred to the mother's very young age and cognitive difficulties and to the fact that she had moved foster placements on several occasions. The judge expressed concern about the PAMS assessment and the concerns identified by the local authority. She said that: "The PAMS assessment was really important, because that was really to reinforce all the teaching and to get your client, because she is a young parent and because she has got her own learning difficulties, to make sure that she really did give and was given the best opportunity to learn more than anything else." The judge added: "And that is the difficulty you have. That was your chance, really, and it does not seem to have been used in the way that I was expecting it to be." 8. Counsel then addressed the concern raised by the local authority about S absenting herself from the foster home and said that S had found it difficult when J had not been allowed to stay in her room after the restriction on unsupervised contact had been imposed. To this the judge responded: "Yes, but it is a vicious circle, really, isn't it, because these extra restrictions were put in place because of the worries that social services had. But you should still be there caring for your child, even with those restrictions in place. If you're not, what is the point of you being there? That seems to be your client's view, in that she is not there. In fact, what I see more is your client almost having to come to terms with the fact of the reality of the situation and just waiting for a decision to be made, because her actions are not showing to me someone who is wanting to roll up her sleeves and say, 'Well, stuff the social workers, I can prove that I can do this'. It is quite the reverse." 9. A little later in the transcript the following exchange took place: "JUDGE: She's had four months. It's a long time. What are you suggesting I do? COUNSEL: Well, mother wishes to put her case forward. JUDGE: Yes, but what does she want me to do with J? Where is she thinking this is all going? COUNSEL: She wishes to be afforded a further opportunity to demonstrate that she can bridge the gap between what the PAMS assessment is saying, the understandable concerns that have generated from that, and her ability to meet his needs. JUDGE: Yes, but your client knows she's got 26 weeks to do this in. There is no reason to go outside 26 weeks. She has four months now in a mother-and-baby foster placement. How much longer are you thinking I should give her? COUNSEL: I would suggest another two months to be able to demonstrate a level of stability. JUDGE: I can't. That's over six months, isn't it?" 10. There followed a discussion as to the precise length of the proceedings and when precisely the statutory 26 weeks would expire. The exchange between the judge and S's counsel then continued as follows: "COUNSEL: I explained to mum of course the view the court would be giving today, and of course she may need to reflect upon that, but her primary position is she wants to be able to demonstrate either through the course of having the further two months or through the course of her giving evidence, perhaps to test her. JUDGE: But what does she then expect the court to do? Where would she go, and what would happen with her and her baby? COUNSEL: Of course, she is 16, so the opportunities could be for her potentially, if deemed safe, and of course the local authority could say it would be assumed safe, to go to her parents' home. JUDGE: Can I tell you, I have read the section 37 report. I have read an awful lot of those reports as final statements in care proceedings. I can tell you now, the one place that your client will never go with that baby is to the family home, okay? You can rule that out absolutely one hundred per cent. I'm on the cusp of thinking that those children shouldn't be living there, okay? COUNSEL: Then the alternative course is that she can be accommodated voluntarily by the local authority given she is 16, of course, and they will accommodate her and [J] together. So that's the -- JUDGE: Well, given the level of restrictions on her being able to care, she is way, way off anyone having the confidence of giving her 24/7 care of this baby. I just can't us getting to a point in a month's time or two months' time or three or four or five months' time, given what I have read, of thinking that I'd have the confidence of her being somewhere on her own with this baby 24 hours a day, seven days a week, and if I can't see that, I've got to see what the outcome is, which is why … it seems to me to be the reality of the situation. COUNSEL: Your Honour, I have advanced the mother's position. JUDGE: What I would like you to do, please, Mr Hughes, is to go outside and just talk to her about it. I think she's probably done her best. I think she has probably done what she can to be able to show to everyone, but I need to have someone who is going to be able to do that every day, every moment of every day, and not just on occasions, because that is what being a parent is about. I wouldn't have wanted to think about being a parent when I was 16, and most of us in court wouldn't want to be doing that. So I recognise it is really difficult, and the rules that we expect for a parent are possibly quite unfair, but that is what this child needs. So, if you want to be a parent, however old you are, those are the rules that you are going to have to be able to comply with, and they're just basic. COUNSEL: If I could just have some time outside to -- JUDGE: Yes, okay." 11. The hearing was then adjourned and resumed 29 minutes later. S's counsel indicated that his client wished to be excused for the rest of the hearing. There followed this exchange between counsel and the judge: "COUNSEL: We had a conversation. Of course, given her cognitive functioning and her age -- JUDGE: I think that's probably the only concern that I have as to whether, if you like, it's appropriate to deal with today, so I will be interested to hear your views about that. COUNSEL: I oscillated between being quite concerned but ultimately satisfied that the instructions she has given me that she understands my breakdown of your assessment of the case and she understands the advice that I have given her, she understands the options open to her, and I made it clear to her that it will be for her to try to persuade yourself or another judge, if she had the opportunity to care for [J], that the way to persuade will be via means potentially of a final hearing being listed with evidence being given, and she understood what that meant. I explained to her and she understood and appreciated your Honour's comments about her trying her best for [J]. I think she has tried her best for J. JUDGE: Yes. COUNSEL: She says to me that she loves him dearly … JUDGE: Yes, I'm sure she does. COUNSEL: … that she would desperately want to care for him. She understands the window with which decisions need to be made for him, and she understood and recognised that there was a long period for her to have demonstrated changes in parenting but the case may potentially have ended up different, but, of course, given the fact that we are where we are, we're four months down the line. She acknowledges that she is not in a position to care for him today. She understands that, and she recognises she is not in a position to demonstrate change in the time afforded. So I went round several times explaining the options to her and the potential decisions. I felt she understood what was being said and the options before her, and I have asked her several times what the outcome would be if she doesn't oppose the making of orders, and she understood the outcome, that the outcome would be of course [J] being placed for adoption. She recognised that. So, on that basis, she tells me, she does not oppose not consent to the making of the order sought, and of course I would seek perhaps the usual recital in the order -- JUDGE: Yes, of course. COUNSEL: -- as to her decision. JUDGE: I am very happy for you to put whatever you want. She's obviously filed a position statement today, so she's seen her solicitor." 12. The judge then asked counsel whether the mother had had similar conversations with her solicitor, to which counsel replied that they had taken place. Counsel then continued with this observation: "I have to be honest. When I was talking with her, like I said, I was oscillating between how much she was understanding. It may well have been the way I was describing things, so I changed and then came back at it from different angles. But I was satisfied at the end of that conversation that she understood the decisions being made and indeed the advice being given, the possible options to her, and I am satisfied that she gave me sensible instructions on the back of that." 13. The father's counsel then indicated that her client would support whatever S wanted to do. The judge then asked of the guardian's legal representative if the guardian felt that the process was right for her to make the orders today. The local authority indicated that they were content to amend the threshold document on the basis of the mother's admissions, and the judge said that she would find the threshold proved on the basis of that document. 14. The judge then gave a judgment. It is very short and, in fairness to all sides, I propose to recite it in its entirety: "1. I made a lot of comments about this case before, and I am not going to repeat those. I know everyone took a careful note of them. I recognise both parents have made incredibly difficult childhood decisions and, as I have said, very adult decisions for parents who are so young, and I understand how difficult that has been for them to make. 2. My main concern, I have to say, having heard the change of position of the mother, was whether or not, given her age and her cognitive abilities, it was appropriate still to make final orders today. But I have been reassured by the fact that I know that the guardian (and she deals with it in her position statement) has been to see her and discuss the case with her, so she was aware of the guardian's position, aware of, if you like, what was probably the reality of the case; and knowing the solicitor who instructs and the fact that a position statement was served and advice and support would have been given to her in preparation of that; and knowing Mr Hughes as I do, and he has given a detailed account to the court of the process that he has gone through today and that he is satisfied that this is a decision that she has made and that she understands the decision she has made and what the impact of that will be. 3. Therefore, on balance, I am satisfied that it is appropriate and I can deal with this case by making final orders today. It is obvious from that I have said that I really could not see a way in which this mother could care for her son given the evidence against her. 4. So I make the care order sought by the local authority, I dispense with the consent of the parents, and the child's welfare requires it, and I make the placement order sought. I am content for appropriate recitals to go in to record the love and the care that both parents have for their child and their expressions of wishing that there could have been a different outcome." The whole hearing lasted only 55 minutes and this included the time allowed for discussions between S and her counsel. Some months later (for reasons explained in the judgment), S made an application to appeal the decision.  The local authority had already placed J with prospective adopters. S was granted permission to appeal and argued that: 1. The judge did not provide adequate reasons for the making of a care and placement order, thereby failing to comply with the requirements of the statutory framework and case law. 2. The appellant neither consented to nor opposed the making of care and placement orders, which the court regarded as consent and, as a result, there was no contested hearing. 3. The judge placed unreasonable pressure on S to change her position and denied her the opportunity of a contested final hearing. The court, after carefully considering the well-known law relating to placement order applications, concluded that the judge had crossed the line between robust case management and unfairness. The court determined that the judge came into court with a clear view of the merits of the case and she indicated, in the clearest possible terms, that she did not think that S had a chance of keeping J. She then told S's counsel that she would like him to go outside and talk to S about it. The court considered that the judge was not merely indicating the likely outcome of a contested hearing, but indicating that she had reached a firm conclusion and that this was plainly going too far, particularly given S's young age and cognitive limitations. To do this, was to place undue pressure on S and in the circumstances, it was hardly surprising that S changed her instructions during her brief conversation with counsel and then declined to remain in court. Further, S's counsel's comments that he had "oscillated" as to whether S understood things should have alerted the judge and everyone else in court as to the dangers of concluding the proceedings. The appeal was allowed on the third ground; it was inappropriate for the court to make any final order at that case management hearing given the significant issue between the parties. Lord Justice Baker stated: "In my view, the change in the mother's position only came about because of the inappropriate comments made by the judge. In the alternative it was incumbent on the judge to give a proper, fully-reasoned judgment. In this case, the judge conspicuously failed to do so. The judgment in truth does not contain or purport to contain any analysis of the reasons why the order was made. It is rather merely a recapitulation of what had happened at the hearing. The deficiencies in the judgment are to my mind on a scale that could not possibly be corrected by seeking further reasons, as suggested by Ms Hambleton, nor excused by reliance on the dicta of Lord Hoffmann in Piglowska." It was held that the applications for care and placement orders must be reheard by another judge and the matter was relisted to be heard within seven days before Roberts J, the Family Division Liaison Judge for the Western Circuit, with appropriate case management directions. Finally, the court warned S that "she still faces the very formidable difficulties in recovering the care of her baby son. He has been living with the prospective adopters for six months and is, we have been told, well settled with them. There has been no contact between S and J for several months. It may well be that a rehearing of these applications leads to the same result, namely the making of care and placement orders" but added that the law is clear that such orders can only be made after due process, a principle that was manifestly infringed in this case. Summary by Sophie Smith-Holland, barrister, St. Johns Chambers. You can read the full judgment of R-B (A CHILD) [2019] EWCA Civ 1560 on BAILII

In brief: Here, we have an application made by a father (“F”) seeking a return order to Spain in respect of his daughter (“E”). The court was required to assess if E had been habitually resident in Spain immediately before her abduction, and if so, and the Hague Convention was engaged, whether a defence could be made out under Article 13(b). The factual background was complex, with concerns expressed by both parents about the other’s ability to take care of E. The Spanish local authority had been involved when E was in Spain, and in England and interim care order was in place. E’s experienced foster carer described her as the most traumatised child she had ever cared for – a view shared by the expert child psychologist engaged to assist the court. Having taken into account all of the factual and contextual background, E was found to be habitually resident in Spain immediately before her abduction. On the facts, however, the Article 13(b) defence was made out. The judge found that E required continuity of care and no protective measures as presented to her by F could serve to obviate the grave risk of physical and psychological harm to E if she returned to Spain. An interesting element of this case is that the judge acknowledged that comity requires the signatory States to the Hague Convention and BIIR to assume that other signatory States are equally competent to deal with child protection. However, despite attempts to engage with the Spanish Central Authority in Spain, as well as the judge making separate efforts via the European Judicial Network, the Spanish authorities did not engage. The case demonstrates the court will still ensure a robust assessment of its member state counterpart before making a return order, which it did not feel able to do in this case.

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The Transparency Project was pleased to receive an invitation to this seminar hosted by Rights of Women, which took place on 3rd September in London. I popped along on their behalf. Dashed hopes  My hope was that we might glean something of the progress and research base of the Government-led spotlight review into how family courts treat domestic abuse and whether guidance (Practice Direction 12J) is working. Perhaps even some clarity about how that will integrate with other things also underway – on PD12J itself, and on wider reform of the private law family court ‘system’.   Rosemary Hunter, Professor of Law and Socio-legal Studies at the University of Kent, is the one common element to the three major current work strands: She is one of three academic experts to the Government-led ‘Spotlight Review’ into how family courts deal with allegations of domestic & other abuse, including PD12J She is the only academic member to the Family Justice Council* looking to capture best practice on implementing PD 12J, within a wider remit of practice guidance on cases involving domestic abuse She is also the sole academic member of the President’s Private Law Working Group, due to make concrete proposals in autumn about wider reform of the private law family courts following an ongoing consultation / interim report. Mr Justice Cobb is the other work-stream straddler. He chairs the working group charged with reforming the private family courts and sits on the advisory panel to the government Spotlight review.  In fact my hopes were quickly dashed. Hunter was not to be drawn on any of those work strands or their integration. She was there to talk about her own view that we need to take a step back, in order to effectively tackle problems with how the private law family courts deal with domestic abuse / operate PD12J – by analysing the ideologies underpinning the recent direction of travel for private law reform, two in particular. More on this theory below, but first a few other points of interest to us, and (we think) some of those who read our blog posts. The research base for reviewing the way the family courts treat domestic abuse and operate PD12J Of particular interest to the Transparency Project was confirmation that Professor Hunter shares the view that ‘systematic’ research about how PD12J is operating across the family courts now is ‘outstanding’ (i.e. absent rather than brilliant). The Transparency Project have written about that here. She was equally clear that this is the currently accepted view.  Nevertheless, she and others consider that, notwithstanding that deficit, it’s reasonable, necessary even, to crack on anyway. The thinking behind this position wasn’t articulated but seems to extend beyond pragmatism to the assumption that we know enough to go forward.  Hunter told us that the barrier to outstanding systematic research is funding, particularly in light of the size of the research task required.  We asked what that outstanding systematic research base would look like if it could be funded in future. She identified the following key research questions: How often are finding of fact hearings being held? How often are alleged victims of abuse being cross-examined by their perpetrators?  How many decisions are being made by consent rather than adjudicated on?  And made the following helpful observations: Family court datasets currently have no markers for domestic abuse. As such the systematic research needed would require a large file sample across England and Wales. This is a very big research task; With the Nuffield Observatory focused on public law and the current financial and political climate affecting the MOJ, there doesn’t appear to be any appetite for funding this from any quarter; The Spotlight Review itself (with a wider remit) couldn’t possibly do that research within their narrow three month window, as she and others have rightly identified from the outset. Back to Professor Hunter’s ‘ideologies analysis’ (Disclaimer: This is far from a verbatim account. Rather it represents my best attempt to explain Hunter’s analysis as I understood it at the time, from my hand-written notes.) Professor Hunter reminded us that private law was ‘cooking away’ at the moment.  In her view, we should take a step back to reconsider the direction of travel in respect of domestic abuse, with reference to two dominant ideologies that have underpinned the last 10 years of reform of the private family law courts and continue to do so: That children’s welfare is best served by ongoing contact with both parents; and That after separation it’s better for parents to sort out their own arrangements without the court being involved (the idea of the ‘good post-separation’ parents, if you will). (Hunter defined an ‘ideology’ as an idea that serves powerful interests, takes on the mantle of ‘common sense’ and won’t be easily, if at all, dislodged by facts or evidence). (1) Children’s welfare is best served by ongoing contact with both parents Hunter argued that following the Family Justice Review, the passage of the Children and Families Act 2014 codified this ideology (previously rooted only in case law) into statute – with really significant consequences for domestic abuse. (Albeit that Parliament ultimately rejected lobbying to extend the ideology of parental ‘involvement’ still further to a presumption of 50/50 care.) Meanwhile, with respect to the caveat being carved out alongside – ‘but not where there’s significant domestic abuse’, the Court of Appeal specifically rejected the idea that this creates a presumption or that domestic abuse should of itself be a bar to contact. Instead findings of fact should be made, and harm weighed up as one factor in the welfare checklist balance. The effect was to make domestic abuse cases an exception to a general rule, applicable only once established. Research tells us PD12J isn’t being implemented properly, with finding of fact hearings rarely taking place and contact being ordered even where findings are made says Hunter. [Note: She didn’t specify this research but if we’ve understood her right she acknowledges that such research as there is falls short of the sort of systematic research she and others would want to see. See also the Transparency Project’s summary of the existing research base here.] Practice Direction 12 J, Hunter argued, was a consequence of making domestic abuse cases an exception to a general rule, applicable only if established. Despite three revisions (one substantive) it’s unsurprising, she said, if we are still finding that domestic abuse is ignored and PD12J improperly implemented. PD12J is fundamentally undermined by its underpinning ideology. Dis-applying the starting presumption (of contact with both parents) requires a high threshold. It’s necessary to show something quite serious to a court even to successfully invoke application of PD12J. This is exacerbated further by resource problems, high numbers of litigants in person as a result of legal aid changes, and other such systemic drivers. A consistent response to the claim that PD12J is patchily implemented at best, is the lack of a systematic evidence base but the absence of an evidence base, says Hunter, is no coincidence. It’s been impossible to get funded to do that systematic work. She also flagged a huge missed opportunity to incorporate family courts into the overall policy strategy for ending violence against women and girls, or even into (now on hold) legislation in the form of the Domestic Abuse Bill. Hunter also commented briefly on what she sees as a rise in use of ‘parental alienation’ as a counter argument in back-lash to moves to improve how domestic abuse is tackled. She noted that a recent Cardiff University review of research and case law on parental alienation to guide Cafcass Cymru practice, that had documented a lack of evidence base for parental alienation, hadn’t been taken up by Cafcass England who had instead contextualised PA within their own new Child Impact Assessment Framework (CIAF) [Note: Julie Doughty, Trustee of the Transparency Project led the Wales research] (2) After separation, it’s better for parents to sort out their own arrangements without the court being involved (private law cases shouldn’t be in court at all). Hunter saw this as a logical corollary to the first premise. The whole underpinning ideology of the private law chapter of the Family Justice Review Report was about not involving the courts, from Mediation Information & Assessment Meetings (MIAMS) to Separated Families Information Programmes (SPIF’s). Promised gate-keeping never materialised, perhaps due to lack of funding but MIAMS were put on statutory footing. We got the Child Arrangements Programme (CAP) with its focus on rationing court time, and gate keeping as to track and MIAM-compliance instead. The court’s capacity to make orders and test them out with adjournments ended with new case management expectations. Then this very ideology provided the rationale for the government to remove private law cases wholesale from the scope of legal aid, subject to establishing an exception, such as for domestic abuse. The only research funded in a private law context recently has been out of court dispute resolution (which actually showed that mediation was far from a panacea, and that LASPOA had not succeeded in reducing demand for private law litigation). Hunter questioned claims featured in the President’s key note speech to Resolution of a 38% rise in couples going to court over child arrangements, based on statistics from Cafcass. She suggested that claims of a dramatic rise in private law applications (also s.7 reports and Guardian appointments) only really held water by viewing the 2014 onwards statistics in isolation. When seen in the context of earlier figures, it’s clear the 2018 figures are still actually lower than 2013/2014 highs. See slide 5 below. [See also Kelly Reeve’s discussion of these figures for the Transparency Project here] Hunter also questioned assumptions that lack of public education and inadequate compulsion to mediate lie behind choosing court over mediation. What if the high numbers of returners reflect initial court decisions that weren’t good enough, were wrong or unsafe? What if cases where the presumption of the involvement of both parents shouldn’t apply are the norm not the exception for this group? Professor Hunter’s conclusion Effectively countering these ideologies shouldn’t entail battling to dis-apply a presumption, show that PD12J should apply, or evidence entitlement to legal aid as an exception, concluded Hunter. Rather, the ideologies must be tackled head on; their contradictions exposed, including by more joined-up thinking. There are contradictions such as women being told (even by the same social worker) to leave and stop contact in a public law context but thereafter to support and promote contact with proven perpetrators, or be seen as harming their children in a private law context. Or leaving the family courts operating in splendid isolation outside of wider public policy and intended legislation. We need to re-conceive the family courts within the wider society they are designed to serve, as just one tool for tackling child abuse and neglect, domestic abuse and relationship breakdown, says Hunter. The idea of the Separated Families Alliance [Note – See Annex 6 Interim report private law working group] is one positive step in that direction – locating and thinking within other services. Private law relationship breakdown cases represent the seriously problematic end of a parenting spectrum. Yet the ideologies we are applying to them are applicable to the other end of that spectrum, who don’t need the family court. Those ideologies just don’t work for the problematic end of the spectrum ending up in court. And as long as we stay stuck thinking within those ideologies any reform is simply likely to be more of the same. Comment Professor Hunter’s ask – that we consider taking a step back to re-frame the attempt to improve how the family courts deal with domestic abuse / operate PD12J, within a wider analysis of underpinning ideology, was thought provoking. Our thanks also to Hunter and Rights of Women for providing her supporting slides for publication here alongside our observations of her insights, for those interested in thinking further on the subject: Hunter’s insights on the research base were illuminating.  Her suggestion that there has been a profoundly unhelpful failure to locate and integrate reform of the family courts within the wider policy strand of the wider government strategy or even the (now fallen) Domestic Abuse Bill, was compelling.  I heard nothing to reassure me that integration and coordination of the various work streams is underway.   I can’t help but continue to wonder how the ‘Spotlight Review’ can be much more than posturing to quell populist lobbying (warranted or otherwise), with neither a systematic research base nor integration with national policy or legislation, nor even integration with other family court reform work strands. I wonder too whether the endeavour of the Family Justice Council to harness and disseminate best practice in implementing PD12J may also be operating in the dark.  * The Family Justice Council (FJC) is a non-statutory inter-disciplinary advisory body sponsored by the Ministry of Justice. It is responsible for advising Government on the operation of the family justice system and for making proposals for reform and improvement.  Image – Serpentine in Palma de Mallorca by Marco Verch at Flickr with thanks: https://creativecommons.org/licenses/by/2.0/

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