T (Children) - Should We Be Reassured by the Judgment

Another interesting case... this time T (Children) [2014] EWHC 2164 (Fam) and one which ties into our last couple of blog pieces. 

Another blog suggests that parents should be reassured that cases involving false or exaggerated allegations will be dealt with appropriately by the court.

Am I completely reassured, as that other blogger seemed to be? No.

I accept that in this case, Mr Justice Holman and before him His Honour Judge Hamilton, had undertaken what seems a clear and very proper examination of evidence. Another case dealt with where false allegations did not result in a miscarriage of justice.

That said, I'm again reminded of last month's warning by HHJ Tyzack that people working with children mustn't take allegations at face value, a point which this case highlights once again.

Let me make clear, I'm not suggesting we need witch hunts against social workers when standards and practices are poor. It's a thankless profession, where staff walk a tightrope and a mistake can cause devastation far in excess of the risks the rest of us live with in our day-to-day lives. When services are being pared to the bone, the fact that we do still see high standards (albeit not universally so) is noteworthy. I'd also be the first to say I've seen standards improve in recent years, and in a good number of cases, I've seen exceptionally high standards where social work input had seen seemingly unresolvable contact breakdown repaired. 

Looking at the case T (Children), and reading the detail, it appears that this case dragged on for many months, with the relationship between child and parent entirely severed until His Honour Judge Hamilton took over the case, and as HHJ Holman says, 'got to grips with it'. Note an inference that prior to this, the court and agencies had not. Further, that social work/police investigations of the abuse allegations, and discussions with the child, had included the use of leading questions which had potentially contaminated evidence and presumably somewhat muddied the water for the court (rather than providing the clarity that was needed). 

The presumption, without evidence, that a child's sexualised behaviour was due to the father worries me further, in that if the child had been abused, flawed investigations leave the perpetrator free and put other children at risk. Another case I've been assisting in, there's a complete lack of evidence against the father, yet there's been no wider investigation. One parent points the finger, and agencies and police run in that direction.

Reading this case, and taking note of Vincent McGovern's submission to the Petition Commission of the European Parliament on failures within UK Family Law, I ask myself several questions:

"Had the evidence from social services been kept secret, including the use of leading questions when gathering evidence from the child, and only the findings rather than the detail of evidence shared, would there have been the just outcome we saw?"

This first question, and the judgment in the T (Children) case, supports Mr McGovern's assertion that it is essential for the precise nature of allegations and the detail of evidence to be shared with the accused when assessed by the Multi Agency Risk Assessment Conference (MARAC) and when attending the Family Conference after.

Question two...

"Would we have seen the same outcome in every court?"

Anyone who assumes, on a single judgment, or a collection of judgments, that standards are universally high is being overly optimistic. The reverse is true too. That said, one miscarriage of justice is one too many, rewards those who make false allegations, makes the court or social services complicit in domestic violence, and flawed investigations leave other children potentially at risk. The wrongful severing of a child's relationship with a parent causes the child unnecessary harm. It causes devastation to the parental victim. Hence we must be critical, questioning and searching. Openness and quality assurance measures are essential to ensure the highest standards become widespread.

One thought... if perfection existed, we would not see successful appeals... but successful appeals are often reliant on high quality advice and the ability of a parent to afford it.

There is an important third question...

"Upon determining that the social worker and police officer had used leading questions when collecting evidence, was there a communication from HHJ Holman to their management calling for additional training and supervision for those involved? If not, why not, and does the mechanism exist to ensure routine feedback from the court to ensure standards are improved and maintained?"

Note, I am not suggesting a public flogging for the social worker or police officer, but sensible steps to support them in achieving better standards for the next family. I've seen other cases in the past where judgments recorded social workers had lied, but nothing was done. An environment of fear and recrimination does not lend itself to openness, here too the press should take note, and I'm not in favour of name and shame websites as they lend themselves to motivating people to cover up mistakes rather than make improvements in an open, mature and honest environment.

Should parents be reassured? No. I'm mindful of the old saying "Put your faith in the Lord, but row away from the rocks." Don't take anything for granted, and if you're a litigant-in-person, you have the additional problems of obtaining the evidence upon which agencies base decisions, ensuring the detail of investigations is included in evidence, and in cases such as this, then ensuring medical evidence is included in proceedings and the right matters brought to the judge's attention. The father wasn't a litigant-in-person, he had counsel (Miss Saiqa Choudry) who clearly did a good job.

Parental Alienation Related Case Law and Resources

Parental alienation, where children are refusing to come to contact, is one of the most painful and difficult areas of family law.

We promised we'd be uploading integrated case law libraries as part of our Family Law App... and the fifth has been uploaded today to support our range of guides aimed at supporting parents where contact has broken down (for the case law library, click on the image to the left). 

Where publicly available, the full text of judgments is available to be read onscreen or downloaded for use in proceedings. We've dramatically slimmed down the file sizes to make the information fast loading in the event you're leaning out of a court window struggling to get a mobile phone reception!

More libraries are coming over the next fortnight as part of the current upgrade project.

Ensure you also read our pages on Parental Alienation, Parenting Information Programmes, Child Arrangement Orders and Enforcement, Family Assistance Orders, False Allegations, and the role of the Guardian-ad-Litem. 

Know your options, understand the approaches that senior courts recommend in relation to contact breakdown (make reference to the Parental Alienation Case Law Library), know the tools available, and be pro-active in making recommendations to the court.

If experts are suggested to assist in contact being re-established such as psychologists or counsellors, make sure you check them out to ensure they're properly qualified, experienced, and members of relevant professional organisations. In 2012, an investigation found 20% had no qualifications at all, and a further 20% lacked the necessary experience. Tools to help you check are provided in our Useful Directories section.

Abusing Legal Aid

In 2013 there was a hoo-hah. Victims of domestic violence were only to receive legal aid from April 2013 if there was evidence to support an application, introduced by The Legal Aid, Sentencing and Punishment of Offenders Act (LAPSO). The list of evidence included:

• an existing protective order or injunction in respect of the other party, against the applicant; 
• an undertaking having been given by the other party in lieu of a protective order or injunction for the protection of the applicant;
• a police caution for domestic violence against the applicant;
• appropriate evidence of admission to a domestic violence refuge;
• appropriate evidence from a social services department confirming the provision of services to the victim in relation to alleged domestic violence;
• evidence from GPs;
• a criminal conviction for domestic violence by the other party against the applicant;
• evidence of a multi-agency risk assessment conference having been referred as at risk of domestic violence, with action recommended;
• a finding of fact by the courts of domestic violence by the other party against the applicant.

The reason for this restriction was due to concerns that, with legal aid being otherwise abolished, the number of false allegations would skyrocket as the system was manipulated to achieve free legal representation.

False allegations are common in the courts. We all know it. We see it week in, week out. They may be due to parental anxiety or hostility. They may come from psychological problems and projection. When intentional and deliberate, the motives include the fast removal of an ex from a property... stopping contact for months... securing free legal representation... and punishment. Sometimes allegations are made for purely pragmatic (and somewhat sociopathic) reasons. The relationship is over... I want him/her out of my life completely.

Mrs Justice Parker reminded all us in December, in a judgment where the mother had alleged domestic violence, that not all allegations are genuine. She found that Social Services had uncritically accepted the mother's allegations and the mother had abused the children herself. She reminded people not to always believe claims of domestic violence and that sometimes parents rewrite history. She's a highly capable judge, and the surprise comes not from her saying this, but it being deemed so exceptional that the national papers reported it.

Should it surprise us that DV allegations aren't critically examined? Not at all. A culture exists where reports of allegations are treated as confirmed happenings (by both media and politicians... I've pointed to examples in other blog posts last year). There's an underlying current that questioning the authenticity of allegations causes abuse to the victim a second time. Such reasoning, and the low balance of proof required in the family courts lends itself to miscarriages of justice. Fact finding decisions are binary (the judge may only decide a matter did or did not happen... unproven is not an option) and the level of proof is that an allegation is more probable than not.

What prompted me to blog about this today?

I was speaking to a police officer today (a friend ...I hadn't been arrested!) who was telling me of another case where he'd been called out and it was clear to him that the call to the police had been tactical, and in his opinion motivated by the parents' up and coming 'custody case' as he called it. The father was removed, but no caution given, and there would be no prosecution. No violence had taken place.

Another call came tonight from a friend wishing me a belated Happy New Year. They happen to be a legal adviser, and were irritated by the number of ex-parte non-molestation orders being sought and granted in 2013. Sighing, they went on to explain that at the following on-notice hearings, the accused was encouraged to give an undertaking. In each of these non-mol cases, later on in proceedings, the non-molestation order was rescinded after findings of fact went in favour of the (falsely) accused. Their clear view was the system is being manipulated. Also that judges share suspicions, but feel obliged to order finding of fact hearings or else face judgments being appealed.

The bizarre situation arises that by making false allegations of domestic violence, the accuser ends up being the perpetrator, and is unwittingly assisted in this by the legal system. Not only this, the perpetrator is financially rewarded. If the (later rescinded) non-mol order didn't see them gain legal aid, the giving of an undertaking (even when a cross undertaking) saved them a few thousand pounds in legal costs. Does the court punish those who make false allegations? Very, very rarely - and Mrs Justice Parker is an exceptionally analytical judge. Is it a crime? Yes... it's contempt of court and fraud, but the court's rarely treat it so.

If the accused is advised by counsel for the other side or encouraged by the judge to give an undertaking (it implies no guilt but carries possible imprisonment for a breach), they unwittingly hand their accuser a cheque, made out by the Government, which pays for legal representation to reduce or eliminate their time in their children's lives. How's about that for a masterclass in vicious manipulation and coercive control.

When it was announced in September that despite the increased reported number of domestic violence allegations to the police, the proportion being sent to the Crown Prosecution Service had gone down. Papers and DV charities automatically reached the conclusion that the police were failing victims (despite reasons for the fall not being recorded). Note... with no evidence or analysis, there was the assumption that police were failing victims. Yvette Cooper blamed police cuts (with no evidence to support that the increase was in genuine victims). It is always possible that the police are analysing allegations where others aren't (even if such action isn't fashionable).

When the evidence based restrictions on awarding legal aid in DV cases were proposed, DV organisations opposed this. Arguments that there should be punishments for false allegations were also opposed. Narrow interest lobbying organisations influence Government, prepared to defend one group of victims at the expense of the other.

What about the victims created by false allegations, the impact on child welfare of unreasonably (in hindsight) stopped contact? What about the services diverted from real victims? What about the money drained from the public purse to support perpetrators in carrying out domestic violence (and fund their doing so via court proceedings)? Not only this, but the abuser ends up with expert support in court, while the victim often has none.

There is a solution. The binary nature of decision making in family law should be widened to include unproven. In instances where allegations are proven to be false (as opposed to unproven), a proportion of funding should be recovered from solicitors (an encouragement for a little analysis when their client approaches them with the allegation). Let the solicitor check the evidence themselves. I do not believe this is unfair, as we're speaking about professionals who should have this ability. Neither do I think it fair that the solicitor should repay all legal aid funds. They may also then pursue their client to recover the monies repaid to the public purse. The court should treat false allegations as a crime with punitive action taken (including community service and fines). Where false allegations are extreme, committal should be considered. Additionally, proven allegations of domestic violence should be treated as a crime, with more than an injunctive order to dissuade the proven abuser from repetition. Being a crime, the court should perhaps hear DV cases under the test of beyond all reasonable doubt (and base prosecution for false allegations against the same higher threshold test). DV, in all its forms, should be treated seriously (and include unreasonable breach of contact, the impact of which, I still feel is trivialised). Anyone complicit in fraudulent applications for legal aid should face criminal prosecution.

In December, the Guardian reported that DV charities and the legal profession are saying that fewer victims are coming forward because they cannot provide the evidence necessary to get legal aid. Before the state hands over thousands of pounds, of course there should be evidence, or in the absence, a mechanism of recovering the funds from people who fraudulently abuse the system for financial gain. Should the courts make injunctions against people where no evidence exists and the accused isn't present in court to defend themselves? No? But they do. Should the Government remove the ineffective evidence based criteria for securing legal aid? Arguably, they should strengthen the controls as the system is left open to abuse (as are the falsely accused who are also DV victims).

Sadly, with risks that the current legal aid system is being abused, the courts should be wary of asking people to give an undertaking, and similarly, people need to be cautious before signing an undertaking in respect of alleged DV. While an undertaking doesn't mean you accept guilt (or you've been found guilty) it does hand your ex-partner a fighting fund to remove your children from you, if that is their wish.

Nervous Mums and Contact: Pre-emptive Planning

When parental relationships break down, and especially when the children are very young, we commonly see mums opposed to contact, with fears that the father is naive and the child may come to some harm in his care. In many cases, we suspect that there may be a degree of post-natal depression at the root of the anxiety. In some, the mother simply wishes to punish the father, or views the child as 'hers'.

That same baby, or toddler, may often spend a night at grandma and grandpas so mum can have a night off. Fair enough... but where the dad is concerned, when mum raises her anxiety at court, the judge can take an overly cautious approach.

We have seen solicitors recommend to their clients that they seek contact in a supervised setting, such as a contact centre, and in some cases pro-actively, and before the mother has voiced any serious concern (we saw this first hand when a mum asked us to go with them to meet their solicitor). The court will often take a cautious approach, endorsing the supervised contact until such time as evidence has been heard (which may take months).

Often there are no 'real' risks. No evidence of the child coming to any harm when the father has cared for the child in the past, but the First Hearing and Dispute Resolution Appointment is often very brief... the legal equivalent of triage, obscuring the fact that the waiting list to resolve the contact dispute can take many months (and in some cases years).

In the more extreme cases, we have had dads come to us, where contact has been in a contact centre for a number of years, despite there being no real welfare concerns.

When you step back and look at parenting objectively, it isn't rocket science, and all parents start out as amateurs (and if we're honest, we remain amateurs dealing with new situations all the time). There would be outcry if new mums were told that they couldn't remove their baby from the maternity ward until there had been three months of contact at a centre, where 'responsible adults' were available to help, or supervise and report on how mum managed child care, and the mum had to prove her capability before the state stopped its monitoring and restrictions.

What help can be given to the poor old dad who's faced with a mum refusing contact, where the situation seems completely out of his control, and the solicitor's letter drops on his doormat offering contact in a centre, or under mum's beady gaze at her house, or not at all... and telling him to seek legal advice.

1. If an offer for contact is made before matters get to court, accept it. Ensuring you continue to see your child takes priority, as does keeping the bond intact. If mum is squarely opposed to unsupervised contact, it's likely the matter will have to go to court for resolution, and that may take some time, as you have to attempt mediation first. Better to have some contact, than none at all.


2. Acknowledge the solicitor's letter. Say something complimentary... 'I know Stephanie is anxious, but I also know we both love Oscar, and I hope that we can work things out together.' Go on to suggest mediation, and be pro-active in organising it yourself. Saying the mum is a good parent in that letter doesn't weaken your position, and if fear of a battle over residence is exacerbating her anxiety, that acknowledgment may draw some heat out of her fears.


3. There will be a delay as you attempt mediation first, and then if this fails, a further wait while you apply to court and wait for the First Hearing and Dispute Resolution Appointment (the first hearing at court). Use this time to your advantage...

One of the most effective things you can do during this time frame is to book yourself on an early years first aid course. Courses are run by St John's Ambulance and by the British Red Cross. The St John's Ambulance course is run over two days, and costs £105(+VAT), while the British Red Cross courses are run over a single day and cost £37.50(+VAT). Take back a little control... you can be booked onto a course in 10 minutes without leaving your sofa!

The day before the First Hearing and Dispute Resolution Appointment, have a position statement prepared with your certificate in early years first aid attached to it. Make sure it's under the judge's nose on the day of the hearing! An alternative is attending a parenting class.

Going on one of these courses helps in a number of ways:

• it may lessen the mother's anxiety (if anxiety rather than hostility is at the root of your contact being restricted;
• when the matter goes to court, regardless of whether the mother is hostile or anxious, you present yourself reasonably, as someone who has acknowledged mum's anxiety, and taken reasonable steps in the hope this makes mum feel less anxious;
• you show the court your commitment to being involved in your child's care;
• you can present the court with evidence, at that first hearing, to show you are capable of dealing with emergency situations, and better qualified than most parents!
• you give the judge some added reason to 'nudge' the mother to accept unsupervised contact, and you can suggest to the judge that having had sight of this evidence there are grounds to make an interim contact order there and then;
• regardless of the tactical advantages, for a modest fee you learn skills which will reassure you, may help save your child's life one day, and the courses are quite interesting.

The facts of the case, and the nature of any allegations will of course affect whether the court is prepared to agree unsupervised contact from day one. Supervised contact can be helpful sometimes, in reassuring the court that the father presents no risk to the child, and in this, can be a progressive step forwards.

It still surprises me though that we see children's contact being restricted when the allegations are minor, and the issue is little more than mum being anxious at being away from the child. For mum, that anxiety may be real, even if the risks aren't. In 2008, Eleanor Fowler of NYAS gave the statistic that 75% of cases referred to their contact centre went on to have unsupervised contact... leaving the question unanswered as to the necessity in the first place.

The dad can help himself by taking a pro-active and positive approach while avoiding the pitfall of getting stymied in counter-allegation, outright warfare, and pointless arguments over gender bias. Deal with the issue... address the allegation... offer a positive solution and move on! The court will likely favour such an approach.

I'll leave the final words to Mostyn J, in the case AR (A Child: Relocation) [2010] EWHC 1346 (Fam):

"On the facts of this case it is clear to me that supervised contact would only have been appropriate if there was the clearest and most compelling evidence that in some way S's best interests would be jeopardised by unsupervised, normal contact. Given the terms of the Strasbourg jurisprudence to which I have referred, it is almost as if there is a presumption in favour of normal contact and it is for those who say it is inappropriate to prove by clear evidence why this is so."

By Strasbourg jurisprudence, Mostyn J refers to the European Convention on Human Rights, and specifically, the right to family life. For the legal advisor (and a number of judges!), it's worth reminding ourselves that a decision to order supervised contact must be supported by evidence (Re M (Contact: Restrictive Order: Supervision) [1998] 1 FLR 721), and that if there is sufficient information available to the judge for them to order contact, despite the possibility of their granting a different order at the end of a final hearing and having heard evidence, the judge may make an order for interim contact (Re D (Contact: Interim Order) [1995] 1 FLR 495).

That certificate in early years first aid, along with other evidence of your involvement in pre-separation parenting is information which may assist the judge in granting your child normal contact (and save the child, you and the court from months of wrangling and review hearings). Don't go to war, think outside the box!

Links to guides are included in this blog. You may also find our guides on applying for contact,  shared residence, interim contact case law, and false allegations of use.

The Shared Parenting Campaign...

Heavens... heavens... the tombola has stopped spinning, and it's time to look and see whether we've got a winner...

On the whole... yes, but with reservations. 4 or 5 numbers on the lottery ticket, but not the full house. We won't be purchasing our yacht and sailing into the sunset yet. Briefly, we'll set out what the Government has agreed to:

1. A presumption of shared parenting (this does not mean a 50/50 division of time, but a presumption that both parents will continue to be involved in bringing up their children after separation... so long as it is safe for them to do so).
2. We'll be seeing the terms residence and contact replaced with child arrangement orders. Sole residence is set to go... and that horribly demeaning term 'contact' is off to the dustbin too.
3. There'll be new enforcement measures available to judges, including seizing of passports and removal of driving licenses for breach of orders.

All of these things are positive steps forward. Download the proposed legislative amendments

The Opposition

In terms of opposition, which was considerable, charities such as Gingerbread and One Plus One, along with the Law Society and politicians such as Alan Beith have opposed our aims. David Norgrove's Family Justice Review came out against shared parenting too (heavily influenced by the legal lobby). The opponents used some underhand tactics... claiming that the proposals were confusing (they're not), bringing along a very narrow selection of research (which commonly had small to meaningless sample sizes), claiming that shared parenting meant a 50/50 split of time (when they knew otherwise), and that there was no evidence to support that shared parenting supported child welfare (when there was evidence a plenty). There also seemed a lack of understanding as to what a presumption is... it's a starting point, and not an end! Thankfully, our Government didn't fall for it! Yay them!

Also, there were plenty of academics, individuals, and organisations arguing for shared parenting, and you might be surprised that we know a fair number of solicitors and barristers who did not share the Law Society's view (and who are quietly celebrating too... yay but shh).

Disappointment

There will be some who will see the result as a failure in terms of the overall campaign, and here's where we explain why.

Definitions and Interpretation

What does shared parenting mean? The Government's proposals are too open to judicial interpretation, and each judge will interpret what shared parenting means in their own, individual court. Some will argue that the result will be no different to what we have now. One crusty old judge may feel that Sunday afternoons once a fortnight is a 'meaningful involvement', while in the court next door, a judge who was or is more of a hands on parent would see family life and a father's role quite differently. That roulette wheel spins in every case... and opponents of the current legal system want a measure of uncertainty removed by the introduction of more detailed guidance. Perhaps it should be remembered that in 1989, Parliament intended shared residence to be commonplace, but the judicial guidance issued by the President of the Family Division contradicted this.

Domestic Violence and Legal Aid

We, and we hear many in the legal profession sharing this view, believe that the number of domestic violence allegations will skyrocket next year. The reason being that legal aid will be given to parents who claim to be victim of domestic violence, while otherwise, parents must employ a solicitor or represent themselves.

With no penalty for false allegations, the tactic of false allegations to stop contact for a 3 or 6 month period while the allegations are investigated will be appealing to the unscrupulous (as will free legal representation!). The status quo will grow in the their favour, and even if the court believes the allegations to be a pack of lies, there will be no sanction. Many falsely accused could also be forced out of their homes by the use of occupation orders or threatened with jail via non-molestation orders. Without more thought, the situation will be ugly, and many children and parents will suffer. Those genuine victims of domestic violence will see services stretched, and face greater disbelief and obstacles, as the courts try to fathom whether this 'victim' is genuine.

It might be appropriate if courts started awarding costs against those who falsely accuse (including legal aid costs), and treat contact denial based on false allegations (and contact denial in general) as another form of domestic violence and child abuse.

What comes next?

Will the Government's proposals result in real change? Will more children have the benefit of both parents in their lives? Will the court use the new enforcement measures? Who knows... we'll have to wait and see.

The Government were right, that without a presumption of shared parenting there was little incentive for waring parents to enter into mediation. They were right, that shared parenting is fundamentally in children's best interests, and a presumption with a caveat on safety is inextricably supportive of child welfare. The research supports that... and comes from respected academics and experts in child welfare, rather than law (surely, as it should be!).

Much will depend on judicial interpretation. We do not know yet who will be the next President of the Family Division of the Courts, but their guidance on this matter will be crucial. Thorpe is due to retire next year too... so we're to lose the two most senior family law judges, and we're seeing a young topgun (Mr Justice Ryder... 'I'm not the youngest High Court Judge ever... but the second youngest I believe') brought in to oversee judicial modernisation. Add to this the loss of funding for some 45,000 private family law cases when legal aid goes... a large increase in litigants-in-person...  a legal system which remains overly complex and is already stretched... and an increase in false allegations caused by legal aid criteria... and it's a recipe for difficult times...

So celebrate or not?

Today... oh yes! Without opposition to, and credible arguments raised against those who were against shared parenting, we'd have seen no progress. Congratulations and thank you to those who took part. It is a progressive step forward, and one to be welcomed.

To those who remain concerned, skeptical and disappointed... we understand, and you've good reason. So forgive us while we celebrate tonight... too early for champagne, but a glass of pinot gris is welcome. Tomorrow we'll need to roll up our shirt sleeves and carry on. The world is a little brighter today, but it hasn't changed yet... and the forecast for next year is positively stormy!