Presidents’ Conference

Monday 16th May, the President of the Family Court Division, Sir James Munby, held his annual conference where various members of the judiciary are updated on certain developments, including the anonymisation guidance produced by Dr Julia Brophy. Unfortunately Dr Brophy was unable to attend, but myself, and several members of NYAS attended on her behalf to provide an update on what has been happening.

Before starting our portion of the conference we thought it would be a good idea to get them in the right frame of mind, and starting to consider how they would feel if their personal details and secrets were published without their knowledge or approval. To do this we had them write down a little known fact from their childhood and put them into an envelope, we then collected them and pretended we were going to read it out loud. The interesting thing following our presentation was that one member approached us to ask what we were going to do with the envelopes as he wanted to keep his fact private, where as another member openly told the conference his little known fact during the question and answer sessions.

Once our introductions were done I had the pleasure of telling a room full of judges and magistrates what the law, and background to our work was. For a background to our presentation you should look back at my previous posts,[1][2][3][4][6][7][8] and head over to Amazon to pick up a copy of my dissertation.[9] We also discussed our various meetings with the President.[See previous links]

The main point of our presentation was to present the findings of “A review of anonymised judgments on Bailii: Children, privacy and ‘jigsaw identification’” and “Anonamymisation and avoidance of the identification of children & the treatment of explicit descriptions of the sexual abuse of children in judgements intended for the public arena” both of which I have written about in previous posts.

The President has both read and disseminated the draft guidance above, due to the importance of any decision he makes relating to this subject he is yet to publish his own guidance, although he is hoping to by the end of this calendar year.

I have not written this post to rehash what I have already said, I think it is important to address some of the questions which were presented at the conference and clear up some of the questions you may have as a reader of this blog or any of the research.

It is not my opinion that there should be a blanket ban on reporting in the Family Courts, or that judges should not be publishing their judgements to BAILII, although this is a current issue which was the subject of research by Dr Julie Doughty. In fact, Family Division Liaison Judge Peter Jackson mentioned that young people involved in a case he heard were glad that their story was published, although whilst sitting on a Transparency Project panel he failed to mention that he first obtained their permission  to include illicit details of their abuse before publication.

If a child or young person is competent enough to fully understand the potential repercussions of information being published, and gives their full consent, without any pressure or coercion, then their Article 8 [ECHR], 16 [UNCRC] and 12 [UNCRC] rights have been respected. It may be beneficial, and provide a sense of vindication, or being listened to, to have intimate details of abuse be published but this is something which will very much have to be taken on a case by case basis.

Judges have to be careful where a child or young person does not want to be identified, in Dr Brophy’s research on jigsaw identification young people were able to identify subjects in 33% of cases from small details which were pieced together. 13 out of 21 of the judgements looked at contained specific information which would enable young people to be identified by peers and local communities, 24% of the judgements were covered in local or national media, and 33% were on social networking sites.

One member of the conference asked how can they stop parents or grandparents from posting about a case when they have warned them not to, this was how the subjects of one of the cases looked at were identified. There is various legislation which a judge can use to limit publication, which you can read about in my dissertation, which can lead to an unlimited fine or prison sentence, from what research I have done these are never followed through so could it be a case of making an example of those who disobey a judge, and could it be that where there is a fight for custody that this demonstrates a lack of acting in the best interests of a child? Where an order is breached it must also be asked how should the law change to try and recompense the child affected.

When it comes to online publication it is now easier than ever to search for people, when legislation was brought in on reporting family proceedings in 2006 Facebook was a fledgling site rather than the behemoth it is today, with over 50% of the global population now having an account. It is also easier to back up websites, share another persons posts, take screen shots, and search. Legislation needs an overhaul to keep updated with technology, this includes how judges anonymise their judgements, and how reporting should be governed.

If the media are allowed greater access to the courts, it has been suggested that a watchdog should be set up, but this raises yet more questions. Who would run it, how would it be funded, what powers would they have, who would they answer to. Any consideration about transparency and the family courts throws a tool box in the works, not just a lone spanner, it is no wonder the President is taking his time.

In my opinion the media inspire disquiet with their scandals, so they are not the answer to transparency. Leaflets do not really work any more. Children and young people have suggested YouTube channels and apps to try and help people better understand the court system, but this does not address the issue of secret courts, child snatchers, and favouritism, to mention a few of the unfounded accusations. Now I do not have the answer to what should be done, but I do have a quote the President needs to keep in mind:

“It has always been the principle of this court, not to risk the incurring of damage to children which it cannot repair, but rather to prevent the damage being done.”

– Lord Eldon LC, in Wellesley v Duke of Beaufort (1827) 2 Russ 1, at para [18]

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Voice of the Child Conference #VOTC2k16

Yesterday was the Family Justice Young People’s Board’s annual conference, the Voice of the Child. Unfortunately even with an early start I missed the very beginning of the conference and walked in not long before a young person, Matthew was telling his story of aspergers.

The young person explained that professionals need to be patient and use appropriate language, it’s all well and good explaining something to a young person but it becomes pointless if they do not understand, just as it is pointless getting annoyed when you are asking questions in a way they cannot comprehend. Some of the other suggestions are, in my opinion, more about common decency such as not talking over them, waiting for them to answer, do what you say you are going to, and treating them age appropriately.

Now Matthew’s story reached a few people in the audience at the conference, but in my mind this is how you should work with any young person. If an adult did not understand what you were saying then you would not start talking to them slowly as if they were a baby, you would not talk over someone telling a story, and you shouldn’t promise to do something you are not going to. In it’s most basic form you should be treating everyone how you would wish to be treated, and just because someone has a disability it does not mean that you treat them any differently.

After a short break it was time for me and my team to present our session ‘The national picture for children and young people in the family court’. Before we spoke a member of the FJYPB spoke about how the number of applications for private and public proceedings have increased year  over year, and how the courts have become more stretched, although Elizabeth Gibby, Deputy Director of Family Justice Policy, did state that judges did want to meet with the young people involved in their cases. It was also revealed that a photograph of them would be provided to the judge so that they can see the young person they are deciding on, and that young people would be shown the judge deciding their case even if they could not meet with them.

As you can probably imagine, when it was our time to step up to the stage we talked about the transparency research we had conducted with Dr Julia Brophy, and our recently released examples of good practice. I will admit I went on a bit of a rant against the media having their own agenda, and BAILII’s disclaimer being of little to no protection for those concerned as the information is still searchable. Although BAILII itself is not indexed by search engines extracts are still published on the likes of Family Law which is.

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

We reviewed that identifiers should be avoided at all costs, and that the level of detail of sexual abuse is obtrusive and unnecessary. One of the young people who helped deliver our session asked a few basic questions, such as what did you have for breakfast and what colour socks do you have, to some intrusive ones, such as has your mother stopped drinking and has your dad stopped beating you, in order to demonstrate how these kinds of questions are uncomfortable and often unnecessary for the public at large to know. From speaking to a few people during the lunch break I think our message was well received. We also mentioned how the President, Sir James Munby, has asked us to continue being involved in the evaluation process of what ever guidance he produces and to deliver sessions at a few key conferences for the judiciary [mainly the President’s and Judges’ Conferences].

Our facilitator from the FJYPB then asked participants “how can agencies improve communication with children and young people in the current climate?” before breaking for lunch. (You may be able to make out some of their answers on the linked picture)

After lunch we played a special version of Family Fortunes to wake people up, it also got us to think about what the FJYPB thought on a range of matters such as what is the best way to communicate with young people, what is the most important thing young people worry about during family proceedings, and what is the best way young people think they can be heard during those proceedings.

The next session was somewhat disappointing, yet eye opening, with a question time panel consisting of Jane Robbie [Chief Executive of National Family Mediation], Anthony Douglas [Chief Executive of CAFCASS], Adam Lennon [Head of Family Modernisation and Improvements, HMCTS], Khadija Lewis [Chair – FJYPB Member], HHJ Lesley Newton [Senior Circuit Judge, Designated Family Judge, Manchester County and Family Court], Dr Elizabeth Gibby [Deputy Director of Family Justice Policy, Ministry of Justice], and Albert Heaney [Director of Social Services and Integration, Welsh Government].

The first announcement, from Adam Lennon, was that the Courts and Tribunal Services are investing £1 Bn in updating IT and communication, including their websites to make them easy to navigate and understand. The current websites of HMCTS are managed under the .gov.uk domain meaning that they are centrally managed, although government services tried to make these accessible they still leave a lot to be desired. He also stated that a new website was being tested, and has received feedback from a panel of people with different access needs, meaning that it will hopefully be much improved when the new site goes live.

Dr Elizabeth Gibby stated that the MoJ are planning to deliver direct information to young people through web and mobile platforms, this still does not address the need of young people without internet access or who do not wish to engage through digital means. HHJ Lesley Newton mentioned that engagement with young people is important and should be considered an important step in a case, indeed Lady Hale mentioned the same point in her key note speech at the 2015 ALC conference.

Jane Robbie mentioned that it is difficult for mediation services to engage with young people where one or both of the parents object to their involvement, but should they be able to object to a young person not having a voice in decisions affecting their  lives? Isn’t that a breach of their Article 12 rights? [Yes.]

She also mentioned that it can be difficult to talk to a young person on a one to one basis, in my opinion this demonstrated the need for a young person to have access to an advocate during proceedings in order to ensure that their view is heard. It was stated that a social worker has to fill in a box during court proceedings stating what they think the young person wants, but there is a huge risk that they will be projecting their own views or professional stance, an advocate is independent of such risks and should be engaged. Also the question was raided should young people be able to apply for mediation, this is one way to ensure that they get a voice in proceedings.

Questions were also raised as to whether a child needs to be provided updates to their case, who should do it, how often should they occur, can it be damaging to give them too much information. This goes back to Mattew’s speech, a young person should be engaged in the process, it isn’t a question of Gillick competencies, it is a question of Articles 3, 4, 5, 9, 12, and 13. A Young Person should be made aware of what is happening in relation to them, it  will be down to each individual case as to who is appropriate to give them this information, and how often. Again this is a job which advocates have been doing day-in-day-out, and enforces the need for such an individual to be involved in a case. The information needs to be proportionate and in a way in which the young person understands.

When the panel was asked who has best practice in engaging with young people many of us felt they copped out by saying CAFCASS, the hosts of the conference, it was only Jane Robbie who actually stated that it would depend on the situation and needs of the young person concerned. My answer was obviously NYAS.

A young person also asked the panel why they wasted so much money on consultations rather than using common sense. Not one person gave an answer, they were quite political in their answers, and in the end the young person gave up on getting an actual answer.

Unfortunately because of train scheduling we missed the rest of the conference, but overall I think it was a good experience and that delegates got the message. Talking one-to-one with some of them they were very aware of the issues and wanted to go back to their respective organisations and make changes or improvements.

Child Abduction: Re M (Children) [2016] EWCA Civ 942

A recent case involving an American family has hit the pages of Family Law Group LLP (as well as other reputable blogs I am sure) due to the use of Article 13(b) of the 1980 Hague Convention.

This case concerned a mother who took her two children, J aged 5, and D aged 4, to England for a holiday on 22 January 2016 and was due to return on 19 February 2016 but they remained in England. The father applied for a summary return to New Jersey on the 14 March 2016, but the mother raised the defence of Article 13(b).

“the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”

In this situation the burden of proof lies with the ‘person, institution or other body’ which opposes the child’s return on the balance of probabilities. Whilst using this defence it is important that the risk to the child be ‘grave’, meaning it must have reached a severe level of seriousness. The words ‘physical or psychological harm’ are not qualified, although the words ‘or place[d] the child in an intolerable situation’ are quantified.

“a situation which this particular child in these particular circumstances should not be expected to tolerate”

In re D (a child) [2006] UKHL 51, at para [52]

In this case there were allegations of domestic abuse against which started in 2010 but became worse after the birth of D in 2011. The mother stated that J was hit on his legs when he was 1, D was hit in his mouth when he was two moths old, and that she was regularly assaulted; she was slapped, had her hair pulled and twisted and that she was chocked in the children’s presence. There are various allegations in the initial case DM v KM [2016] EWHC 1282 (Fam).

The initial ruling by Russell J to allow the children and mother to stay in England was largely based on the report of a CAFCASS officer who has met with the children. The report stated that the children were aware of the abuse, J had described his Father as ‘angry’ and ‘rough’. There were concerns that emotional and psychological development may be adversely effected by the situation, and in the face of it his views were indicative of a child learning to blame the victim for the abuser’s actions.

“when my mummy stops talking he does not have to yell any more.”

DM v KM [2016] EWHC 1282 (Fam) at para [16]

As you can imagine there were also concerns for the living arrangements should they return to America.

“Where allegations of domestic abuse are made, the court should first ask whether, if true, there would be the grave risk as defined by Article 13b. If so, the court must then ask how the child can be protected against the risk. The appropriate protective measures and their efficacy will obviously vary from case to case and from country to country … Without such protective measures, the court may have no option but to do the best it can to resolve the disputed issues.”

Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27

The father denied the allegations, but in order to ameliorate the situation offered undertakings to the court, ,supported by written evidence from a US attorney in respect of  their enforceability.

“not seek the mother’s prosecution for the offence of child abduction; not attend the airport of arrival; not remove the children from the mother’s care; to provide a three bedroom property for the exclusive use of mother and children and pay the rent and outgoings and make other reasonable maintenance provision; to pay for the children’s return flights; to submit to a non molestation order; and, to commence proceedings in a competent USA court in respect of the children.”

Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27 at para [8]

Russell J found these undertakings to be ‘no more than vague and ephemeral assurances and do not amount to protective measures at all sufficient to meet the needs and circumstances of the children in this case.’

Without any physical evidence as to the abuse there is the potential issue of parental alienation, where a parent knowingly (or, as importantly, unknowingly) is in a position where their child’s wishes and feelings are intrinsically linked to their own with regard to contact with, or even their views on, the other parent. As the mother is the primary care giver this may have been an issue, where it not for the children’s statements in the CAFCASS report and the police being called by the landlord, and the father being taken by police for psychiatric assessment.

On appeal the Court determined that the Russell J had not conducted a proper evaluation of the protective measures and that her approach to the issue of protective measures was ‘wrong’, and inconsistent with Re E in that the Judge ‘merged the first and third step of the exercise upon which she should have embarked’.

(i) identify the risks

(ii) consider protective measures

(iii) in the absence of protective measures, the Court should do the best it can to resolve disputed issues

The appeal was brought on the basis that Russell J’s decision was incompatible with the written evidence presented to the Court and based on a lack of evaluation in relation to the protective measures offered. She had found that found the enforceability of the undertakings doubtful, despite evidence from the US attorney to the contrary, she also doubted the effectiveness of the New Jersey police force as a first port of call if the mother found herself in fear of violence. The Court of appeal found there to be no way in which she could have ‘legitimately doubt[ed] the efficacy of the USA courts or police force in enforcing protective measures’.

Another issue was the emphasis Russell J placed on the CAFCASS report as evidence of domestic abuse on the parent, although the onus upon the Court was to look at and evaluate the effect of domestic abuse on the children. Russell J’s comments, were ‘not sufficiently careful to avoid the perception that she had reached adverse conclusions against the father and was sympathetic to the mother’s plight’. This may be why the Court of Appeal found her approach to be ‘confused’.

The CAFCASS officer concluded that the children were not at grave risk of harm at the hands of their father and the final recommendation was that there should be supervised contact. The Court of Appeal went further to say that the Court ‘was ill advised to interpret factual scenario’ from the report, this is perhaps due to the children’s ages, although they were generally found to be of sufficient maturity for their ages.

The final decision reiterates that it is not within the remit of English Courts to determine the ability of other 1980 Hague Convention signatories to protect potential victims of domestic abuse. Nor is it the English court’s responsibility to determine other signatories’ ability to adjudicate family proceedings. It reinforces the message that whilst Hague proceedings are not a fact finding exercise that the line between the two types of proceedings is dangerously thin, and occasionally blurred.

One of the main criticisms of Russell J’s findings was her failure to consider a conditional order for return upon the father’s performance of his offered undertaking, notably his offer to obtain an injunctive order and secure separate accommodation etc. This case relays the message that protective measures must be explored to the very fullest extent as early as possible in proceedings.

“A court cannot refuse to return a child on the basis of Article 13b of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return”

Return of the child [Article 11 BR II]

At its most simplistic evaluation, this case reinforces the need for proper and balanced evaluation of the issues and allegations in Article 13(b) cases. The summary nature of the assessment that should be conducted does not exclude the need for legal scrutiny of allegations. The strength in the father’s case lay in the weight and effectiveness of the protective measures which is why the Court of Appeal allowed the father’s appeal and ordered the return of the children to the state of New Jersey. I think it must also be noted that the children did not express a wish not to return to America or see their father in the CAFCASS report.

Some of this post has been interpenetrated from the original article, linked at the top of this post, and the preceding cases.