Mum forced to write to childrens’ dad in prison

Most of the tabloid press have reported extensively on this story of a mum who had her throat slit by her ex and who is said to face jail if she doesn’t write to him in prison. All of the reports I have seen identify the adults by name and give the general location of where the mother is or was living. Some of them identify the children by name, and some by photos. I find myself in the unusual position of linking to the Daily Mail coverage which is the only report I can find which does not identify the children by name or show their faces : “Mother who was tortured for seven hours and slashed across the throat in front of her sons by her ex-boyfriend is forced to write to him in prison and give him updates on his kids – or face jail herself
This is a shocking case, and every report I have seen has extremely graphic pictures of the Mother’s injuries, and some photos of the children, in some instances unpixelated. Some reports show the Father and pictures of the Mother’s now faded scars. One shows the letters written by the Father to the children. I am surprised at the level of identification of the children and at the amount of local information, but I take it from the number of papers that have run with this that the proceedings must be concluded (the order described appears likely to be a final order) and that therefore there is (probably) no criminal offence in naming the children. However, although it seems unlikely that anything I do will make a blind bit of difference to these children in light of the extensive national coverage, apparently with the Mother’s consent – I prefer not to name them and not to link to an article naming them. I will not accept any comments on this post that attempt to do so. There are no reports on BAILII that I can identify as relating to this case.

Most of the reports seem to be very similar in terms and are drawn from an agency report, and the photos all appear to be different images from the same photoshoot of mum and children.

I thought that it would be useful to attempt to offer a view of what may have happened in this case and what the court’s approach usually is to this sort of scenario (where a father has committed some really heinous violence on a mother which the children have witnessed). It’s difficult to say too much, but there are a lot of incredulous, disgusted, and confused comments out there – so I’ll do my best to put it in some sort of context. Obviously, I’m doing my best with the limited information available, but I’ve tried to make reasonable guesses at the sorts of scenarios that the published material point at. There may be others I haven’t thought of – and of course if the reports are inaccurate my assumptions based upon them may also be wrong.

So here’s a bit of background.

Whenever the court makes a child arrangements order (what we used to call a “Contact order”) it MUST attach something called a warning notice to the order. This says that if the order is breached the person breaching it can be punished through an enforcement order or imprisonment. So firstly, this wording, scary as it is is nothing out of the ordinary – it has always been the case that the court can send someone to prison for breaching it’s orders, but from 2006 Parliament legislated to say this warning must be placed on every contact (now child arrangements) order made as it was felt that contact orders were not being enforced as well as they ought to be.

Secondly, imprisonment for a breach of a contact order very rarely happens. It can only happen IF the other parent APPLIES to the court and PROVES beyond reasonable doubt that there was a breach AND that a sentence of imprisonment is justified (it rarely is if the Mother is caring for the children, particularly if the other parent is in prison and couldn’t take over care). In reality the prospect of this mother being sent to prison for failing to comply with the order seem to me to be pretty remote. However, that is not to say that it couldn’t happen – and it may still feel pretty threatening for the Mother to have read this in the order.

However, one report (that I’m not linking to) refers to “negotiated terms”, saying “The negotiated terms stated that she would have to send letters three times a year – at Easter, September and December”. That raises the possibility that this was an AGREED order, although the tenor of the article (and all the other articles) suggests it was not agreed. In particular various articles say the Mother “spent £3,000 on legal fees to fight the demand, but a court ruled that she would have to send three letters a year, updating Hughes on the children’s school progress, health, and emotional development” [my emphasis].

This is puzzling because it appears that the application was made in Jan 14, and the mother “was asked to go to court just before Easter [14]”. The impression is that there was only ever one hearing, yet I’d be surprised if she spent £3,000 on legal fees for a single hearing. The published letters begin in April 14, however this does not necessarily mean the order was made at this stage and even if it were it might have been a temporary order whilst the case proceeded. If the court were told that there were any disagreement about contact, particularly where there has been significant violence as in this case, I would expect the court to list a further hearing where the matter could be properly aired – and very probably to seek assistance from CAFCASS before that hearing. If the Mother did not agree to this contact and this was an order imposed at a first hearing anyway something has gone awry (in my partially informed opinion).

It is significant for me that nowhere in any article is there any suggestion of the Mother seeking to appeal the order, then or now. It is also apparent that the Mother has been complying with the order to date, and some reports suggest the childrens’ reaction has not been positive (unsurprisingly). I don’t know if the fact that the Mother has been “told to keep the [letters] in case the boys want to read them one day” is guidance she was offered at court when the order was made or that she has been offered subsequently, perhaps when she has reported her difficulties. It is the sort of thing that might be said at that point or at the point of making an application to vary, but other than that remark there seems to be no suggestion that she has or intends to return to court to vary the order.

It seems possible therefore that the order was agreed by the Mother at court when, because she was no longer represented, she did not appreciate the court’s powers of imprisonment in the case of breach, and would have had no idea what a warning notice was. Alternatively she may have agreed it on advice (i.e. that she was unlikely to successfully resist an order). Best practice would say that someone (the Judge / Magistrates / her lawyer) should have told this Mother about the warning notice before she agreed to the order, and certainly before she left court, but if she was unrepresented it would not surprise me if this had not happened – indeed the articles all suggest that the first point at which the Mother became aware of this risk was when she read the order. It is possible that the order was drawn up by the Father’s solicitors at the request of the court (this often happens because the court uses very long templates for its orders and doesn’t have time to draft orders between hearings) and sent out on a later date by post, leaving the Mother to open up and order and read the rather scary warning notice with no explanation. If the Mother did by then have solicitors they should have checked the order and sent her a letter explaining its terms.

There is a further possibility though. It might be that the Mother agreed to this indirect contact, and that there was no need for an order formalising that at all. It might be that her agreement was converted in the drafting to an order, or that it was recorded as a “recital” (record of an agreement) on the court order, but no ACTUAL Child Arrangements ORDER was made (the law says that an order should only be made if it would be better for the child than making no order – if it’s agreed it may be inappropriate to make an order). It is not unheard of for an order to be drafted from the template, containing no child arrangements order, but where the default wording is not properly edited to remove the (redundant) warning notice. That is to say it is possible that the warning notice is on the order in error and that there is no threat of prison at all. Obviously I don’t know whether that is so, but it is one of the possibilities IF the reference to “negotiated terms” is correct. If the Mother were represented this should have been picked up, but the reality is that the templates have caused some confusion since their introduction and some lawyers leave in redundant text when they should not.

There is a quite separate issue of course as to whether this mother, if she were at court as a litigant in person faced with an application of this sort, was in any proper position to “negotiate terms” with the Father’s lawyers, but one would hope that if such terms were agreed the court would have checked her consent was given on an informed basis and not under duress.

It isn’t immediately obvious why the Mother was  litigant in person at all. I would expect a Mother in these circumstances to qualify for legal aid on domestic violence grounds (see here) but if the Mother now has a new partner who works or is herself working she may not have qualified on means grounds.

Let’s assume for a moment that this order was imposed by the court without the Mother’s agreement. Why would that happen? Lots of people commenting on the articles are understandably struggling with that. Well, it is not a case (as reported) of “parental rights” but of the rights of the child to know about and maintain a relationship of some sort with both parents, even rubbish parents – except in the most exceptional of circumstances. There is now a statutory “presumption of parental involvement” but for various reasons that would not have applied in this case – however caselaw is clear that, regardless of the statutory presumption, a relationship with a parent can only be severed in exceptional circumstances. Knowing about the failings of our parents can be quite important in our understanding of our own identity. I anticipate that this order would have been made for “identity purposes” so that the children retain a link to their Father – and probably so that they are able to read those letters when young adults to help them make sense of what happened to them and their mum. Beyond that it is difficult to speculate – it is possible that the children were confused and upset at their father’s absence notwithstanding the awful events and needed some reassurance he was ok (seems counterintuitive I know but children are complex beasties). We really don’t have enough information about what the children recall, how close they were since the events, what explanations they had been given etc. Different children have a vast array of reactions to life events – it seems unlikely that they would be anything other than traumatised and frightened of their father but the court would fuller information upon which to judge that than we do.

Taking the order as it is described in the various articles, I note that the Mother is required to send the Father updates on the kids, that he is permitted to write 3 times per year, but there is no (or no reported) requirement for her to show the letters to the child. That might be an accurate reflection of the order or not – it is possible that requirement was left out precisely to allow the mother to exercise her judgment as the situation evolved – from the articles we don’t know if she would risk contempt for not showing them the letters. An order for a parent to provide updates is often provided not for the benefit of the offending parent but to give them a reasonable chance to write letters that will be personalised to the child in question, for example by mentioning their interests and achievements and asking about their likes and dislikes. The purpose of the updates from Mother to Father are therefore likely to help the Father write letters the children will want to read and respond to (not that that purpose will make the writing of them any easier for the Mother).

I would expect this matter to have been finalised after the preparation of a s7 report from either CAFCASS or the Local Authority. If I were representing the Mother I would probably want to know what impact this had had upon her and whether the idea of managing this contact would re-traumatise her to the point where it impacted on the kids. I’d consider seeking a psychological assessment of her if I thought she could not cope with it. I’d want to know how the kids were managing in understanding what had happened and where their dad was. I don’t know what if any of that happened, but the court most likely had a wealth of information that we do not, before imposing the order or approving the “negotiated terms”.

Show Me The Primary Evidence

Or so I often say to local authorities (although I say it nicer than that).

But often, parents – including my own clients from time to time – having instinctively grasped the best evidence principle (apparently better than some social workers), struggle then to understand why they are either prevented from gathering their own “best evidence” or from relying upon it. I am talking about the antidote to the age old “he said” / “she said” : the audio recording.

Now any family lawyer will tell you that their heart sinks when a client gets out a dictaphone and starts to squibble through it to the apparently killer moment in an audio recording of appallingly low quality. Because it is rarely killer evidence. And in fact the only time I can recall such evidence being “killer” it killed my client’s own case. It was her own recording. So beware the perils of recordings. They often reveal as much about the recorder as the recordee.

There are very real practical difficulties with the use of audio recordings in family proceedings.

Firstly, there are potential issues around the lawfulness of making covert recordings in some circumstances (and I’m not even going there in this post).

Secondly, particularly in the era of digital recordings it is very difficult to prove or satisfy oneself of the authenticity of a recording (or at any rate it is unlikely to be something that can be satisfactorily dealt with – it is highly unlikely a forensic IT expert is going to pass the “necessary” test in many cases). So, questions like : Is the recording the complete conversation? Has the recording been edited or resequenced? are likely to be unanswerable in practice. And this may render such evidence less weighty than it could potentially be if time and resources were limitless. But much the same is true of facebook and iphone printouts that are often relied upon with no forensic scrutiny of their completeness – it takes a mere couple of clicks to remove an unhelpful text from a sequence of messages. If it doesn’t bother us in that example why should audio recording be different (actually I think it should bother us in both contexts, but I’m not sure how that can be dealt with without chucking proportionality out of the window).

And thirdly, there are likely practical difficulties in terms of service of and accessibility of electronic material where LiPs are involved (as they often are in the private law cases that most recording efforts arise from), and difficulties in ensuring the necessary equipment is arranged in advance of a hearing.

I think it is fair to say that it is not only lawyers who are pretty down on audio recordings. Judges and CAFCASS officers are reluctant to listen or refer to them too, I think because they typically fall into one of three categories of recording :

  • a recording of a part of an argument, perhaps one which has been engineered by the recorder doing something provocative before the recording begins, and which are set up in order to show the recordee in a bad light
  • a recording of a child being asked direct questions or under pressure, often being asked to repeat the thing said before the tape turned on
  • a recording of a child being demonstrably in distress

In my experience these types of recordings are rarely of any evidential value and show the person making the recording in a very poor light. It is generally (but not necessarily always) my advice that this sort of material should not be relied upon because it is unlikely to help and may make things worse.

Recordings of children are even more problematic than adult to adult conversations. Children are now often more adept at the use of electronic handheld devices than their parents, and are often wise to their parents recording them on their iphone, or have a habit of finding the hidden camera behind the pot plant. I recall one excruciating recording where the child asks directly why he is being recorded. This sort of recording is almost never helpful and if a parent desperate to obtain the “proof” of whatever thing it is that they have been disbelieved on succumbs to the temptation to quiz the child can become emotionally abusive. Typically this is about childrens’ reports of what the other parent does or says to them whilst in their care, or about the childrens’ wishes and feelings.

So for me recordings of children are a no no.

But what about recordings of meetings and liasons with professionals such as CAFCASS Officers and social workers? I think that is a rather different proposition.

I know it makes professionals uncomfortable. But frankly, so what? The system is not structured for the comfort of professionals. Parents however are routinely made uncomfortable by the highly intrusive child protection process – something we should not dismiss. And since there are routinely substantial differences of recall or opinion about who said what in such meetings it is worth considering whether or not this sort of evidence would assist the court where contemporaneous notes or witness recall cannot.

Forget arguments between parents, or what the childrens’ wishes *really* are – how often have you dealt with a case where the social workers version of their assessment meetings, interviews or home visit are just incompatible with the parents account? The thing is this. There are lots of reasons why a parent’s understanding, experience or perspective of a meeting might be very different from the professional – they may well not be a “reliable” historian in any forensic sense simply by virtue of the fact that emotions are high and the stakes are high also. But the truth of the matter is that sometimes social workers are also less than reliable – sometimes even untruthful. I know that many parents would suggest that social workers are routinely and regularly untruthful, such is their desire to meet their targets to have children removed and secure their adoption bonus. Leaving that aside for one minute (I don’t think that is really what happens) I have met plenty of social workers who are just not great with detail, who don’t recognise their own emotional involvement and how it alters their own perspective and responses to a situation, and who are see, record and retell the history in an overly negative light. I have met social workers who seem to be prepared to gloss over the specifics of a particular conversation for the “greater good”, which is to secure the outcome that they genuinely think is best for the child. I have sometimes suspected dishonesty on the part of a social worker but have rarely proved it. There are cases in which social workers have been caught out lying, but they are infrequent. Here is a notorious example of a case where the honesty of a social worker became a really big issue : Bath & North East Somerset Council v A Mother & Ors [2008] EWHC B10 (Fam) (22 December 2008). Here is one recent example of where a recording was crucial : Man Wins Compensation After Recording Saves Him From Prison.

So, what I have been thinking is that there is an easy way of dealing with all of those cases where a parent denies making a particular remark to the social worker, or where they criticise the Guardian or social worker for failing to report something important they did say. And that is to record those conversations.

So. When I intially started writing this post it was because I was pondering why a parent should not be permitted, if they wish, to record an interview or meeting that they are required to attend? I see few reasons why they should not do so, providing they make the professional aware (I don’t see why they should need consent but I do not think that recordings should be covert – not least because it is subsequently impossible to have confidence that a recording represents the whole meeting). Those I can think of are that they might selectively edit the recording to mislead the court, or that they might distribute the recording, for example on the internet. Well. They might. But although that is undesirable it isn’t in principle any different to all the other vast amounts of material put out there by parents. And just as with other sorts of information orders can be made to prohibit such action.

And at any rate, I think that there are bigger issues at stake. Like tackling the widespread belief that social workers all tell lies, that they are all corrupt, and that it is dangerous to talk to them. I have dealt with a number of cases recently where this sort of belief has materially affected the trajectory of a case because a parent’s engagement has been adversely affected. We have to find ways to help parents feel safe working with social workers and CAFCASS so that we can see past their apparently inappropriate reactions to authority or threat.

And so then I began to wonder why there couldn’t be routine recording of social work meetings and interviews of adults – not by parents but by the state? Again, there are resource implications. And I think there would need to be a system of written consent from the interviewee, a written record of the fact and times of the recording maintained and given to the interviewee and of storage of those recordings for future use (a bit like a PACE notice that you get at the end of an interview under caution). If the police can have helmet cams why can’t social workers have some equivalent audio recording system? A parent would then be able to elect not to be recorded (at their risk) or would have a record that a recording existed and how long the recording should last. It would obviate the need for the parent to record, and would remove the temptation of a parent disseminating a recording online before receiving legal advice. It would protect the social worker against allegations of inappropriateness or dishonesty (assuming they were indeed appropriate and honest). It could indeed provide evidence if necessary of a parent’s damning remarks or poor behaviour.

So yes, it is counter intuitive for professionals. But it is actually a form of protection for both professionals and parents. It should not make people nervous. It might be said that it will somehow represent a barrier to engagement or the building of relationships, but social workers purport to record interviews and engagement with parents anyway (and frankly in my experience are a bit rubbish at it much of the time – and don’t even get me started on the continuing LA practice of destroying contemporaneous manuscript notes on logging) – so parents know what they say is going to be scrutinised anyway. The more I think about the more I am convinced that a parent may well be reassured to know that they are not going to be “stitched up” (as many see it) by lying social workers. It seems to me that a social worker may be more confident in their evidence base if they know that in addition to their notes and recall a record exists of the complete conversation. And it seems to me that in the cases where there is a real and material dispute about a conversation of significance the recording could be sought by any party. It would not need routinely to be produced (just as social work logs are not routinely produced but can be produced necessary).

And perhaps most importantly – if there are dishonest social workers out there (and I am sure there must be some) they will either be compelled to play fair or will be caught out. That surely can’t be bad.

I can see a counter argument here about the possibility that it will become expected that a parent would submit to recording of an intrusive interview in their own home – that does worry me. But equally it worries me that at the present time a parent who records an interview covertly or who seeks to record will have it likely held against them and may be told they cannot rely on it –  either by their own lawyer or the court. And I think that is unacceptable. I wonder also if recording were de-stigmatised we might reduce the risk of lawyers advising against use of a recording whilst on “auto-pilot”. Perhaps it is to toss the poor parent from the frying pan into the fire to suggest the state should routinely record interviews with them? There are some big issues here…I don’t know what the answer is – but I do think that CAFCASS and LAs should be thinking about these things. I think that at the very least CAFCASS and LAs should have policies or guidance for practitioners on when recordings should be made, and what a practitioners response should be to a request to record.

I’ll leave you with this thought. There was a rather striking judgment of the President’s out today (Re A (A Child) (Rev 1) [2015] EWFC 11 (17 February 2015) which Suesspicious Minds has already covered here : A tottering edifice built on inadequate foundations. Think about that case. Think about what it tells us about the importance of the primary evidence, about the importance of analysis of the actual facts and where they lead, and about the risks of building an edifice on the “lack of honesty” or “failure to engage” or “failure to acknowledge”. Imagine if the interviews upon which that tottering edifice had been recorded. In that case the dynamite of an audio recording was not needed to topple the building, but in other cases such evidence of inadequate foundations might be critical.

Newsflash – Family Justice System Fixed

Well, one of a number of hull breaches has been repaired anyways.

That is, the DNA testing pilot that has been running here in Bristol will be rolled out nationally from September. Yay! Small trumpets.

It would have been two trumpets and a cymbal if the drug and alcohol testing pilot were also going to be rolled out, but in fact that is subject to further pfaffing (there will be a further pilot). That is disappointing – it is frankly a no-brainer that it should be rolled out. Alcohol and drug testing is a block to progress in far more cases than paternity.

No mention of where the money will come from though – will it come from existing CAFCASS funds or will they get some extra funds? And if so what impact will it have on other services?

See MoJ Press release here and BBC report here (with what I think is the rather optimistic headline of : “DNA Test Funding “Could End Family Court Battles””.