Checking Credentials - Therapists and Counsellors

The Children and Adoption Act 2006 introduced a variety of tools related to supporting contact activity which the court could access if the child/parent contact broke down. An anomaly was that these tools solely related to supporting contact orders and not shared residence orders. Amendments to legislation in April 2014 corrected this when contact and residence orders were combined within the new child arrangements order (click for more information on Child Arrangements Orders).

One of the tools available to the court allows a judge to order that the parents and/or child attends counselling. The child may be encouraged to meet with a therapist where alienation is suspected or some other unresolved matter is at issue causing the child to feel anxious about or resistant to seeing their parent.

Where contact has broken down entirely, it is critical to get a qualified therapist with experience. If a name is proposed by a legal adviser, welfare officer or judge, you should check that the therapist is suitably qualified and experienced. Why? In 2012, a Channel 4 News investigation found that over a fifth of expert witnesses producing reports for court were not qualified at all. Do not assume that recommended experts and professionals have the required knowledge, qualifications or expertise.

In the area of contact breakdown, alienation, family therapy or conflict resolution it is only prudent to check that those recommended as expert therapists, are! 

For more complex cases, if the court orders that a psychologist assists the family, their credentials and areas of expertise can be checked via a visit to the British Psychological Society website. Via the directory below, you can search for an individual psychologist and ascertain their experience and qualifications.

Counsellors and therapists may also be directed to assist the family. The British Association for Counselling and Psychotherapy holds a register for its members, which you can check to ensure the validity of someone purporting to be BACP accredited. They also, like the other professional bodies, have a code of ethics and complaint procedure should something go wrong or service delivery be poor. Importantly, they publish hearing findings, decisions and sanctions which arise from complaints. The BACP register is approved by the Professional Standards Authority for Health and Social Care.

To find a BACP approved therapist, you can also visit their 'It's Good to Talk' site where you can search by region, specialism and approach.

Counsellors and therapists may also be a member of one of the following bodies. Please note the United Kingdom Council for Psychotherapy directory search function wasn't working when we tried it last night, and the Association of Child Psychotherapists' register doesn't differentiate between trainee and full members.

To help resolve broken contact, expertise is required, and if a therapist is recommended by the court, in our opinion they should be an expert, a member of a professional psychotherapy association and have specific experience. We recommend that if a person is proposed as a therapist, ask which professional body they belong to, confirm their membership by using one of the above links (if they belong to another organisation, contact that organisation to confirm their membership), and check that organisation's code of ethics/conduct and criteria for membership. It's no guarantee of success outcome, but wise, nonetheless.

Warning: You must not seek to have your child seen by a counsellor, therapist, psychologist or psychiatrist as part of a strategy to include the therapist's opinions into court proceedings to support your arguments. In such circumstances, you should seek the court's permission first. See our guide to Psychological Assessments.

Child threatened with handcuffing prompts many questions

A distressing Youtube video was brought to my attention today which shows a 13 year old child being forcibly removed into foster care. I don't know the parties or the case circumstances, but watching the video prompted the following questions:

• Why weren't the child's wishes and feelings represented in court, or were they? 
• If they were, why wasn’t sufficient weight afforded to them? Impossible to say without hearing the full case. The child's wishes and feelings, as expressed on the video (in fairly horrific terms), seem quite clear to me. 
• The father appears to have been badly advised or had no advice. He didn't attend court, because it appears the solicitor he found had a conflict of interest and couldn't represent him. Whether or not this is the case, how much more likely is it that we'll see similar occurrences after legal aid is abolished. Is this the real face of cuts in the legal aid budget? 
• Did the child's solicitor ever meet with the child?
• It appears that the Guardian and social services had not visited the father's house. Should the police be threatening to handcuff a 13 year old child? 
• Could the police have handled matters better, than handcuffing a parent in front of a child, and threatening to handcuff the child... waving an order made 'in the child's best interests'. 

You watch... you decide... I can't see the child's face being shown, or their surname being given, so I'm fairly satisfied no laws have been broken in posting this video, or our drawing it to your attention, as the child has not been identified.

What harm to this child… going through that… and my problem is that when you have knowledge of cases where Social Services have lied in court (acknowledged by the judge) it makes you question just a little bit more…
Was that reasonable force? Really...

Does a child have a 'right' to meaningful relationships?

A question answered in a Facebook discussion...

Does a child have the right to a meaningful relationship with both parents, unless proven unsafe for them to do so? 

Oh let me count the variables, one by one...

The Burden of Proof
How does one prove it is unsafe? You don't need proof. You don't need fact. You need allegation, and then if CAFCASS (the court welfare service) or a Judge think that allegation was 'probable', then you may see that relationship end entirely. In family law, the burden of proof required to determine whether a matter happened (or not) is a 'balance of probability'... not the more robust 'beyond all reasonable doubt' as is seen in criminal law.

Factual Polarity
Despite matters being decided on a 'balance of probability', the judge has only two options available to him or her when making a final decision. The alleged incident did happen, or it didn't. There is no option of 'unproven', or might have happened. Therefore, when a judge finds that a matter was probable, it becomes factual!

'M'Lord, he leaves alcohol and drugs around the house'. 
'Given your anger today, I can see how it is probable that that did happen.'
So without any evidence, or witnesses, or any real evidence at all, the accused becomes guilty.
'From M's testimony, clearly you're irresponsible and a risk to your child.'

Grey becomes black or white.

In April 2013, a parent will only get legal aid in the family courts if they 'allege' domestic violence. You can image what we are anticipating to happen. What penalty for false allegations? Typically none. Will those allegations face robust scrutiny? Not when the President of the Family Divison of the Courts is trying to reduce the number of finding of fact hearings to save money... and not when the test for deciding fact is a 'balance of probability'.

What risks... On a might have happened, a parent can be removed from their home and their child. An injunction based on a 'might have happened' is later taken for 'it must have happened'. Surely allegations of abused/violence/assault (which can include verbal assault) should be judged in the criminal court, under the more evidence based criteria. Many parents would see a loss of home and limitation of family life to be a worse punishment than prison.

Subjective Observation
The burden of proof becomes more flimsy in that a judge will count as 'factual evidence' his or her opinion of the parties and their demeanour in the court room. A party with dyslexia could be found to be evasive or deceitful (on account of the way they answer questions... and yes, I know of cases where this happened). A parent trying to present his case professionally might be seen as cold. Parents who are nervous, stressed, anxious can be seen as overly emotional, or unable to control emotions in life. 

Limits on Evidential Scrutiny at Appeal

How the parties appear in court cannot be challenged in the appeal court, because the appellate judge 'does not have the benefit of seeing/hearing the parties give evidence'. So the validity of this most flimsy evidence becomes set in stone when at appeal. Unchallengeable.

Disadvantage for the Litigant-in-Person
A litigant-in-person (a party/parent without legal representation) does not have the benefit of having a solicitor cross-examine their ex-partner for them, so is at a significant disadvantage to the represented party as the judge scrutinises how the question was asked, as well as the answer. The litigant's stress, unfamiliarity, anxiety, fear may seem excessive to a judge who is used to the settings of court, and not emotionally involved in the outcome of proceedings or allegations which have been made.

In 2010, the current President of the Family Division of the Court set greater limits on lay advisers (McKenzie Friends) being able to address the court ('rights of audience'). The circumstances were limited to 'exceptional', and perversely, it is only where the litigant is able to articulate that they are too inarticulate to present their own case that rights of audience will commonly be granted to their lay adviser. Was this done in the interests of justice, or protecting the role of the legal profession? The legal principle of equality in arms seems to have left the family court arena.

Some feel such limitations corrupt the court's duty to Article 6 of the Human Rights Act 1998, and the right to a fair trial. Bear in mind that in April 2013, legal aid is to all but be removed from private family law proceedings (except in cases where domestic violence is alleged). Only the wealthy will have the buffer of an advocate speaking on their behalf.

Discrimination
In our experience, these limitations significantly affect parents with specific learning difficulties such as dyslexia. Due to pride, or fear of being viewed as 'less capable' some don't raise the communication difficulties that they have when under stress. One doesn't know how court affects you until you've had that experience. The litigants reasonable need to have questions repeated can be taken as a lack of intelligence, while halting replies might be viewed as their lacking in honesty. Hand written evidence, long legal words, huge volumes of paperwork present them with what can be insurmountable hurdles.

To find out how decisions are reached at appeal, visit our family law application... just click the image.

Judicial Notice

There is also what can be the flimsy concept of 'judicial notice', which in essence means that if a judge considers a matter is subject to common societal belief, no proof or evidence is needed to support that belief (if a judge mainly socialises with creationists, you'd imagine that in his/her court, Darwin would be considered a fraudster). From a legal perspective, opinion becomes fact.

Judicial Discretion

When matters go to appeal, the appeal court doesn't find for the applicant if the applicant's arguments or evidence best support the child's welfare or relationships. Judicial discretion comes first. The appeal court will only overturn a decision if that decision if proven to be 'plainly' wrong.

In Summary

 So... must you prove that a parent is unsafe? No... the presumption of a meaningful relationship doesn't bear much if any scrutiny, and neither does the opinion that justice is defended by our current legal system. The Government's proposals to give that presumption more strength will be meaningless unless judicial discretion is curtailed, and if the threshold and criteria for successful appeal is re-examined.

What does 'meaningful' mean anyway?

Alternate weekends. Two hours at McDonalds or half the time. Unless defined, it means that each individual judge decides what it means. A game of chance, as without definition, family life is decided upon individual ideology rather than any social policy or fact. What is sometimes called... the family court lottery... and I don't buy that each case is fact specific, for the reasons stated above. No sir... not at all.

A right to family life... a right to meaningful relationships if safe... (the debated) presumption of shared care... all meaningless without definition. 'Every case must be decided on its own merits actually means each case is decided upon the individual ideology and perceptions of family life'. Surely our children deserve a little more certainty than that?

Video statistics from 'Outcomes of applications to court for contact orders after parental separation or divorce.' Joan Hunt and Alison Macleod. Oxford Centre for Family Law and Policy. Department of Social Policy and Social Work University of Oxford. Family Law and Justice Division. September 2008