Category Archives: rants

Pay what you owe or talk to the hand (what’s a Hadkinson order when it’s at home?)

 

The case of BR v SN provides an unusual example of court proactively controlling litigation about child arrangements against a backdrop of pretty relentless litigation, appeals and a failure to comply with orders made.

 

After many earlier stages in the litigation between the parents, in 2023 the father had made an application for the child to live with him. That application was to be heard by Her Honour Judge O’Neill. However, HHJ O’Neill decided that she would deploy the little used power to make a Hadkinson order, which had the effect of blocking the proceedings. The appeal judgment of Moor J tells us the background to that order being made, and why the father’s appeal against it was allowed. However, the reason the appeal was allowed was not because such an order could never be justified, but because of an important misstep by HHJ O’Neil that undermined her decision. And if you read on you will see that HHJ O’Neill was largely vindicated in her approach, notwithstanding the headline outcome.

 

A Hadkinson order is one which prevents a litigant who is in contempt of court from pursuing an application until they have purged their contempt. Put simply, the court can say ‘I’m not listening to you until you do what the court order tells you to do. If you hold the court in contempt it will treat you in like manner’. Purging contempt means putting right your breach of an order. Although the original case of Hadkinson was a case about a child, these orders are almost always made in financial remedy cases.

 

In separated Schedule 1 proceedings (financial proceedings about the child) the father had been ordered but repeatedly failed to pay maintenance and costs orders. In those proceedings the court had made a Legal Services Payment Order (LSPO), effectively an allowance that the father was to pay to the mother to meet the costs of her being represented on the child arrangements application. He had defaulted on all of those orders, and by the time HHJ O’Neill dealt with the case, the arrears were something like £90,000 including the LSPO. This meant that whilst he was represented on his application for a change of residence, the mother was significantly out of pocket and at risk of losing her representation because of the father not complying with the order. By making a LSPO another judge had determined that it was necessary for the mother to be represented in order for there to be equality of arms, and the father’s failure to pay money (which they court had already concluded he was able to pay) was jeopardising that fairness. So, the judge made a Hadkinson order.

 

And, following a pattern set over many years and many appeals preceding this one (with one more still in the wings to follow) the father appealed.

 

In fact, the appeal judge allowed the appeal against HHJ O’Neill’s order because it was too widely made, but this was something of a pyrrhic victory for the father because the judge decided to look at matters afresh himself and reinstated the Hadkinson order, albeit in slightly more modest terms. Now the father will have to pay a sum sufficient to enable the mother to defend the application before he can proceed to run it, but he will not necessarily have to pay the full amount outstanding (which is much larger). The mother will still be able to pursue enforcement proceedings to get the rest of the funds owed, but she has done that before and it has not apparently been enormously successful. One imagines from reading the judgment that she is probably fed up to the back teeth of going back to court again and again to enforce orders she is entitled to expect are paid, and that the father knows perfectly well how exhausting and infuriating his conduct is.

 

The court certainly has little sympathy for him, to go by this judgment – that includes HHJ Wildblood who dealt with the matter in 2023 and was distinctly unimpressed with the father, HHJ O’Neill who made the Hadkinson order, and Moor J who reimposed it in adjusted terms.

 

How was it that the appeal was allowed but a similar order reimposed? Well, the judge had got everything right in terms of her application of the law to the facts, with one exception. This was a case where welfare was paramount and she had not specifically considered whether the Hadkinson order was consistent with the child’s welfare. It seems rather unlikely that the judge in fact failed to consider this issue, but it appears that the absence of any reference to it in her judgment was fatal. When Moor J went back to pick up where HHJ O’Neill had left off her analysis (which he said was unassailable apart from that one error) and applied the welfare consideration, he concluded that as long as sufficient funds were available to ensure the mother was able to be represented a fair trial could proceed, and that since it was in the child’s welfare interests for the litigation to conclude as soon as possible that order was the proportionate response to the father’s contempt, without going further than was necessary. The father was ordered to pay a much reduced sum in order to revive his application for a residence order,

 

It is important to appreciate that part of the reason the LSPO had been made in the first place was the mother’s ‘vulnerability’. It’s not completely clear from the judgment whether there have been any findings of domestic abuse against the father, but the issue certainly seems to be live – the Domestic Abuse Act 2021 is mentioned, the mother’s barrister asserted that the Father was pursuing the litigation ‘as part and parcel of his “high end coercive control”’, and it is recorded that Peel J had found the father’s conduct to be ‘oppressive’, when making the LSPO. The father’s approach to and use of the litigation as described in the judgment of Moor J certainly appears to be pretty relentless, punitive and controlling.

 

It will continue to be very rare for the court to make a Hadkinson order, particularly in children proceedings. Were it not for the breach of the LSPO, which related to the residence application, the court would most probably not have reinstated any Hadkinson order in this case at all, because the other orders didn’t directly relate to these proceedings.

 

Of course, zooming out a little, there are many, many cases in which neither party has sufficient funds for representation, and so the court does not have the luxury of extracting funds from one party to ensure representation for the other to level the playing field. Nobody sensible would suggest that the appointment of a QLR by the court to ask questions on behalf of a party, where the other is represented before and throughout the hearing by their own advocate, is even approaching equality of arms. And to play devil’s advocate – if it wasn’t good enough for the mother in BR v SN, why is it good enough for all the other vulnerable litigants with ex partners who behave oppressively, who are not above using the process to put pressure on their exes, but who have shallower pockets?

 

The other striking feature of this case is that the child has been living in the mother’s care (with the approval of the court) for many years, and the court already has the benefit of a recent report from an independent social worker which clearly recommends that the child should remain living with the mother. However, said Moor J, the father was entitled to challenge this report, although he might have an ‘uphill struggle’. Indeed.

 

Although it is not completely clear from the judgment (as it isn’t directly relevant to the appeal) it appears the mother has made a s91(14) application, but that it hasn’t yet been able to be dealt with (a s91(14) order requires a party to first obtain permission from the court before they are allowed to issue a fresh application about a child). Whilst a long history of repeat applications is not a pre-requisite, the history of many, largely unsuccessful applications by the father about this child, and the findings of vulnerability and oppressive conduct, suggest that such an order may well be made at the end of the proceedings, perhaps against both parents. The revised guidance around s91(14) orders contained in PD12Q certainly suggests the making of such orders requires proper judicial consideration.

 

We may see more of this family in due course, as the father has a pending appeal about a specific issue order relating to the child’s school, and assuming he complies with the revised Hadkinson order the court will proceed to decide his residence application before too long. It is to be hoped that the court will publish its judgments on those matters.

The presumption of parental involvement ten years on

‘Now is the time to reassess presumption of parental involvement’, writes Lea Levine in the April issue of the journal[1].

That’s what the Harm report said in 2020[2], and the Government agreed before commissioning an ‘urgent’ review of the legislative provisions in s1(2A) Children Act. That review has still to be published some four years later[3]. I assumed when I read the title that the article would relate to the review and its strangely slow paced ‘urgency’.

this is a picture of a flower to lighten things up

This is a picture of a flower to lighten things up. If it doesn’t load properly you aren’t missing anything crucial. Carry on reading…

But my assumption was incorrect. Levine’s piece isn’t about the history of the statutory presumption, or its impact, nor about the extraordinarily protracted process of its review after less than a decade on the statute books. Instead, the article talks at length about the pro-contact culture, the threshold of ‘cogency’ or ‘compelling reasons’ that is said to apply to ‘no contact’ decisions, and the failure to properly balance the ongoing impact of domestic abuse when making decisions about contact between perpetrators and their children. In doing so, it locates s1(2A)[4] as the source of problematic attitudes and decisions, identifying reform of the statutory presumption as the solution to that problem. All the more surprising then that the 2020 recommendation for its review and the review’s perpetually pending status is not mentioned at all by Levine. (Those who are interested in its progress of the Review can read a series of posts by The Transparency Project site, based upon FOI requests and responses to those requests – given that at the time of writing Parliament has just been dissolved and an election looms it seems unlikely the review report will see the light of day any time soon, if at all[5])

Whether the family courts consistently protect victims and children from the wider harmful effects of domestic abuse is contentious. Many would say not.  The harm that children suffer from seeing, hearing, being exposed or subjected to domestic abuse and coercive and controlling behaviour is now well established. The rippling after-effects and the potential for continuing subtle, abusive behaviour to find its way back into the lives of children and their carers through contact is also, I think, beginning to be better understood by family court judges, lawyers and social workers. But whether one’s view is that more work is to be done or that the pendulum has swung too far, it is useful to consider: how significant a role does the statutory presumption actually play when we are thinking about making sound, safe, welfare based decisions for children?

To answer that question, it is necessary to go back and understand how the statutory presumption actually came about, to think about what it does and does not do, and to analyse what is really going on when courts are making decisions about contact against a backdrop of proven domestic abuse. That history is not covered in the Family Law piece, so I want to recap on it here for those who have forgotten or who are comparative newcomers to the long running debate around how best to approach contact post-separation. I want to suggest that the current focus on the statutory presumption is the wrong target.

The statutory presumption followed on from the 2011 Norgrove Review[6], and was introduced through the Children and Families Act 2014. Rather than changing the law (for example by creating a presumption of shared care as father’s rights groups had argued Norgrove should recommend), the new provision effectively codified the longstanding approach of the family courts that contact between a child and both of her parents was generally a welfare benefit to the child – a prior de facto presumption underpinned by and expounded in years of appellate authority and human rights law (i.e. Article 8, no contact as an interference in the child’s right to family life with her other parent). For those who do not know this history, it is easy to assume the statutory presumption is the source of the attitude of the family court to contact with non-resident parents. It is not.

The new statutory presumption didn’t say how much contact should happen, in fact it didn’t even mention ‘contact’, preferring instead the very flexible concept of ‘involvement’, which could embrace direct or indirect contact or even potentially involvement in decision making without any contact at all (i.e. the grant or exercise of PR). From the fathers’ rights lobby’s point of view this was all a very damp squib and did not advance their cause one iota, because it just said what had already been happening. The wording is cumbersome and worth reminding ourselves of, since it is often inaccurately summarised or paraphrased:

‘A court…is…to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare’.

That is the bare bones in s1(2A). But one also needs to cross refer to other subsections that were introduced and which define the parameters and operation of this provision. The presumption applies only to certain applications / decisions (essentially s8 decisions (including contact) and decisions about the grant of PR), and only applies where the ‘parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm’.

A parent is deemed as being able to be involved without putting the child at risk of harm i.e. they can rely on the presumption, ‘unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child’s life would put the child at risk of suffering harm whatever the form of the involvement’.

Let’s work that back: If there is there is some evidence that suggests that any form of involvement would put the child at risk of harm then the parent is not a qualifying parent and the presumption doesn’t apply. End of. So, this ‘unless’ provision isn’t triggered in cases where direct contact would be inappropriate but where indirect contact or non-contact involvement would be safe.

But then the statutory presumption itself says only that this ‘involvement’ (however meagre) is presumptively beneficial. It does not require the court to prefer one form of involvement over another (direct over indirect for example), or to prefer more contact over less, frequent over infrequent contact. Like any presumption, it can be rebutted or disapplied by the evidence and the facts. And in domestic abuse cases, post fact-find, that evidence is largely before the court and uncontestable. Where contact – or involvement, or a particular type of contact – is not in the child’s best interests (because of domestic abuse or any other factor) the paramountcy principle bites and the presumption can be disapplied.

In fact, when the (overcomplicated) text of the section is closely read, the presumption is only actively engaged where there is a live contention that there should be no involvement at all (put another way – where the dispute is around what sort of involvement the presumption is uncontroversial and adds nothing).

Cases where a party argues for no involvement at all (no indirect contact, no grant of PR / termination of it) are still few and far between – although I wonder if in recent years more parents observing a shift in attitudes towards domestic abuse have been emboldened to argue for no contact to abusive parents and removal or restriction of their PR[7]?

Boiled down, all the statutory presumption says is that some (unspecified) involvement is in a child’s best interests (unless it’s not). And nothing about it impinges upon the paramountcy principle – welfare trumps all. Objectively read then, it is an inconsequential provision with very little range and bite. And yet it appears it hold great symbolic power (just as the longed for presumption of shared care or equal contact held great symbolic power for the fathers’ rights lobby). This is because it has become a proxy for the underlying issue, which is the so-called ‘pro-contact culture’, which it is suggested by Levine and others (including the Harm panel) that the presumption somehow reinforces. That pro-contact culture is articulated and repeated in both pre-and post-2014 caselaw: essentially that contact is almost always a good thing and will almost always be ordered in some shape or form[8] – a far broader proposition than the statutory presumption.

It’s easy to dismiss complaints about a pro-contact culture by saying ‘well, it’s just the law’. But such retorts demonstrate a failure in understanding of what the pro-contact culture is and how it operates (in fact they are a failure to see that it actually exists). A compelling explanation of the pro-contact culture is given by Olive Craig of Rights of Women:

‘The pro-contact culture … is a description of the assumptions professionals in the system make, whether consciously or not, that contact is going to happen anyway, so ‘let’s just get on with it’. It is the way in which we assume the law will be applied. It leads to a minimisation of the harm caused by domestic abuse and therefore hinders the proper application of the welfare principle. It also leads lawyers to focus very heavily on the rights of the parents to see their child and of the child to see their parents while ignoring the other parts of the United Nations Convention on the Rights of the Child that make clear a child also has a right to be protected from all forms of violence. It leads to a system that overlooks the resident parent’s right to a private life, free from violence and abuse and the state’s role in protecting individuals, both adults and children, from violence and abuse.’[9]

Thus, the pro-contact culture leads to a distortion of the law and a shift in litigation behaviour in response of that distortion. Reading the post that Olive’s quote is taken from made me really reflect on my own practice, and the role I had played in years gone by in decisions by women not to pursue allegations that had profoundly impacted them and their children but where, having received frank advice, they felt it was pointless or too difficult or dangerous to pursue their allegations to proof. We all know what happens to those women in the longer run: ‘it’s not proved ergo it didn’t happen ergo there must be contact’ and we all know what happens when that contact doesn’t work (relentless litigation, criticism of emotional abuse or alienation, transfer of residence). THAT is the pro-contact culture in action.

Whilst the statutory presumption may be an attractive focal point for the energies of campaigners, and whilst abolishing or reforming it would remove any validation effect that it may have, my own view is that its amendment or repeal is highly unlikely to bring about cultural change without more. Moreover, the slow but steady shift in attitudes that is evident from an increasing number of published judgments concerning domestic abuse and consequential s8 orders over the last few years is evidence that research, campaigning, awareness raising, training, and the publication of judgments showing how it can be done are having (and hopefully will continue to have) a far more meaningful impact than tinkering with these few lines in the Act ever will. Change is like a rolling stone and it feels like it is now well and truly rolling, though I dare say there is a distance still to travel.

A thoroughly unscientific search on BAILII (still the repository of the greatest number of first instance family judgments, including those at Family Court level) for cases referencing the presumption provides a high number of results, and it is clear that certain judges routinely incorporate reference in their judgment to the presumption, as they summarise the law[10].

However, a large proportion of the hits across all judges recite the presumption in bare terms and never return to it to or engage with it at all. Many refer briefly to the statutory presumption alongside a summary (of varying degrees of detail) of familiar pre-2014 (and often pre-Human Rights Act) case law, and paragraphs 35-37 of PD12J.

Typically, references are to Re O (contact: imposition of conditions) [1995] 2 FLR 124 at 128 where Sir Thomas Bingham said:

‘…it is always in the interest of a child that he or she should have contact with the other parent…the separation of parents involves a loss to the child, and it is desirable that this loss should so far as possible be made good by contact with the non-custodial parent.’

and often cases such as Re J (a minor) [1994] 1 FLR 729 (‘contact with the parent with whom the child is not resident is the right of the child, and very cogent reasons are required for terminating such contact’) and Re M (a minor)(contact: conditions) [1994] 1 FLR 272 (‘no Court should deprive a child of contact to a natural parent, unless wholly satisfied that it is in the interest of the child that contact should cease, and it is a conclusion at which the Court should be extremely slow to arrive.’)

By and large, it is this caselaw (and PD12J) which judges do engage with (where relevant) explaining how they have applied it and why in this particular case they are making an order for contact or – increasingly, but still infrequently – why they are not making a direct contact order, are imposing a s91(14) order or are restricting or removing PR. Whilst the welfare checklist and paramountcy principle are a useful set of tools and guiding structures for judicial analysis and evaluation and presentation of a judgment, the presumption it seems is not. Other judgments base decision making in light of domestic abuse findings upon the exhortations in paragraphs 35-37 of PD12J to consider the harm suffered and risk of future harm as a result of domestic abuse by parent and child, and (para 37) to make an order for contact only of the court is satisfied that ‘the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before, during and after contact’ and ‘ that the parent with whom the child is living will not be subjected to further domestic abuse by the other parent’. These paragraphs are in materially different terms (and territory) than the statutory presumption. A court can quite properly follow PD12J and decline to order direct contact, without trespassing on (or rebutting) the presumption of ‘involvement’ at all.

Rarely, if ever, does a judgment deal at all with a) whether the presumption applies in light of the issues in the case or b) whether it has been rebutted as a result of the evidence, and his is likely to be at least in part because in reality in most cases it doesn’t add anything to the mix. Even in the Fragile X case (MacDougall v SW & Ors (sperm donor : parental responsibility or contact) [2022] EWFC 50) where the facts were extreme and unusual, the presumption does not appear to substantially impact on the evaluative exercise or the ‘no involvement’ outcome. Lieven J explicitly took into account ‘the overall presumption in s.1(2A)’ (and in the case of one child a history of some contact), but concluded that ‘these factors do not outweigh the level of harm that would be caused’ by the grant of PR and contact. For the other children who had never had contact to the F, making either order would be ‘highly detrimental’ to them and indirect contact was specifically considered but ruled out because the benefits did not outweigh the disbenefits.

In G (Children : Intractable Dispute) [2019] EWCA Civ 548 the Court of Appeal describe the presumption of parental involvement as ‘very strong’, they also confirm that ‘it is not absolute. As in all matters relating to the upbringing of children welfare prevails’.

In Griffiths v Kniveton & Anor [2024] EWHC 199 (Fam) Lieven J stated that the presumption ‘is only a presumption, and necessarily will involve considering the facts of the particular case justify departing from the presumption, or the degree of restriction on any parental involvement.’ before concluding that ‘I think it is in XX’s best interests not to have a direct relationship with the F’. By way of (important) aside, it is of course the mother in this case, MP Kate Kniveton, who is now campaigning for the presumption to be reversed, in part as a result of her lengthy and painful experience of domestic abuse and the family court process – it took her many years to get to the position described in the judgment referenced here, an illustration of how hard one has to work to rebut the presumptive benefits and importance of direct contact even after serious abuse has been evidenced[11].

What recent published first instance judgments demonstrate to me is that neither the statutory presumption nor the caselaw presumption prevent judges from being quite able to disapply it, or from refusing contact (or PR) when the facts and welfare require it.

One further illustrative example – in R (no order for contact after findings of domestic abuse) [2020] EWFC B57, HHJ Vincent cites Lady Butler-Sloss in Re L (A child)(Contact:  Domestic Violence) & Ors [2001] FLR 260, (now a markedly less frequent feature of submissions and judgments than pre- H-N And Others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448, [2021] 2 FLR 1116) that there is no presumption against contact as a result of domestic violence (as it was then labelled), but that ‘the facts of a specific case … the degree of violence and the seriousness of the impact on the child and on the resident parent have to be taken into account’ and that  ‘the court has the task of weighing in the balance the seriousness of the domestic violence, the risks involved and the impact on the child against the positive factors (if any), of contact between the parent found to have been violent and the child. In this context, the ability of the offending parent to recognise his past conduct, be aware of a need to change, and make genuine efforts to do so, will be likely to be an important consideration.’ I think this case is less often cited post Re H-N, and perhaps it is sometimes overshadowed by H-N. It is nonetheless good law. Whilst some contend for a presumption or even a bar against contact in cases involving domestic abuse, Re L in light of Re H-N is a powerful tool for encouraging judges to properly consider the benefits and risks of contact in domestic abuse cases rather than falling back on generic pro-contact propositions.

I’m not arguing here that we should not strive for better and more consistent application of PD12J, and for welfare decisions that take proper account of harm and risk of harm arising from domestic abuse. Without arguing that every case involving domestic abuse should result in a no contact order, or the forfeiting of all parental rights (as some do), and without adopting the mantra of ‘contact at all costs’ as an accurate description of the judicial approach, I do suggest that it is incumbent on us all to think hard about what is meant by a ‘pro contact culture’, whether it is in play, and whether or not our practice is contributing to it.

Even ignoring the presumption, Court of Appeal guidance, based upon the core provisions of the Children Act and human rights principles, must and should be followed. Contact is generally beneficial to children. But neither caselaw nor human rights law requires a court to order contact where it is not possible to do so safely or in a way which is not consistent with a child’s best interests. And as attitudes to and understanding of domestic abuse and its effects on adults and children evolves, so must the circumstances in which courts decide to depart from the ‘norm’ of an active involvement with both parents. That may still not involve many ‘no contact’ outcomes, but lawyers must be prepared to argue for, social workers to recommend and judges to order such outcomes where the facts and the risks support that. By assuming and advising that ‘judges almost always order some contact’ we perpetuate and precipitate that outcome.

I would suggest there are more effective ways to tackle the so-called ‘pro-contact culture’ than by expending energy on the statutory presumption (and in any event, I would not recommend holding one’s breath for the Review or any action to then follow on from it). Instead, we can focus on our own roles as legal advisers, as advocates and as judges and how we can develop our approach so as to avoid inadvertently perpetuating a ‘pro-contact culture’ that sometimes disempowers survivors and produces self-fulfilling prophecies.

We can read, disseminate, and learn from those judgments where the judicial analysis demonstrates a depth of understanding of the enduring harms of domestic abuse and of the potential court process to perpetuate or exacerbate that harm when not properly controlled by the court. They may not all be citeable authority, and most are fact-specific, but they are instructive nonetheless. Why did the court accede to an argument against direct contact in this case, but reject a similar argument in another? How was the result achieved? What about the facts and evidence and the framing of the case made the difference in that particular case?

We can use our self-reflection and learning to call out and challenge professionals whose welfare recommendations or decisions are not rooted in the evidence and findings, or which lack a proper acknowledgment or assessment of risk and of welfare in light of domestic abuse.

Since I never thought it made much difference to anything, I’m actually pretty agnostic abuse the presumption being reversed (though we will have to wait and see what it is to be replaced with, if anything). I don’t think that it is the solution that campaigners are looking for and nor is it a prerequisite for achieving their goals of safer contact, even if it would somehow ‘send a signal’. We do not need to eradicate the presumption (statutory or otherwise) that contact with both parents is generally a good thing. We need to persuade judges (or as judges be open to the idea) that proven domestic abuse, harm suffered and ongoing risk of harm are good reasons to restrict or even preclude contact (or involvement) perhaps in more cases than has hitherto been the case, and that the process of persuading the court that this is so can be a difficult burden for victims to bear. We need to use our enhanced understanding and skills in relation to domestic abuse to rebut the presumption, where it applies, and where it is justified, and to argue for truly welfare based outcomes which properly take into account the harm caused by domestic abuse itself and sometimes by the family court process itself. I think that fundamentally is a task for the family court community not the statute books.

A post script

I initially embarked upon writing a response to the article because it wrongly attributed remarks about parental alienation to me, which I wanted to correct. Whilst I was correctly quoted in the source article by the BBC, making a few remarks about the increasing use of jargon and terminology around ‘parental alienation’, comments about a ‘national scandal’ were not mine, but were made by the author of the study the article relates to (Dr Elizabeth Dalgarno), as the BBC article makes clear (that’s here by the way, if you care to read it https://www.bbc.co.uk/news/uk-66531409 ). I have asked Family Law to make a correction, which they have kindly agreed to do. UPDATE 9 Jun: Neither the BBC piece nor the Family Law article reference the research study by Elizabeth Dalgarno, who is an academic at Manchester. You can read it here (not noted in the article is the fact that participants weren’t asked about parental alienation). I couldn’t locate the link yesterday but have now dug it out, for those interested.

 

 

Footnotes

[1] Now is the time to reassess presumption of parental involvement in cases involving domestic abuse, Family Law [2024] Fam Law 393, Lea Levine.

[2] The report said that the presumption ‘detracted from the focus on a child’s welfare and safety – causing harm to children in some cases’, and that an urgent review was required. https://assets.publishing.service.gov.uk/media/5ef3dcade90e075c4e144bfd/assessing-risk-harm-children-parents-pl-childrens-cases-report_.pdf

[3] In an implementation update in May 2023 the government promised publication by the end of the year. https://assets.publishing.service.gov.uk/media/646e0e577dd6e7000ca9b2f8/harm-panel-delivery-update.pdf. Some report suggest publication is imminent, but it is unclear if the election will affect that e.g. https://www.tortoisemedia.com/2024/05/13/children-at-risk-of-enduring-harm-from-abusive-parents-if-family-courts-dont-reform-say-campaigners/ .

[4] along with related amendments to s1, namely s1(2B), s1(6) and s1(7).

[5] See this post from Feb 2024, https://transparencyproject.org.uk/the-moj-review-of-the-presumption-of-parental-involvement/, which links back to earlier posts.

[6] https://assets.publishing.service.gov.uk/media/5a7c4b3ae5274a1b00422c9e/family-justice-review-final-report.pdf. In fact, Norgrove recommended in the interim report that ‘a statement should be inserted into legislation to reinforce the importance of the child continuing to have a meaningful relationship with both parents, alongside the need to protect the child from harm.’ but by the time of the final report was recommending no presumption at all, stating instead that ‘the core principle of the paramountcy of the welfare of the child is sufficient and that to insert any additional statements brings with it unnecessary risk for little gain. As a result, we withdraw the recommendation that a statement of ‘meaningful relationship’ be inserted in legislation.’ Nonetheless, in due course something not dissimilar to Norgrove’s interim recommendation was implemented, albeit the can of worms relating to ‘meaningful involvement’ which had caused much difficulty in Australia as a result of similar legislation, was deliberately sidestepped.

[7] It has to be acknowledged this is an unevidenced suggestion on my part, based on my own anecdotal experience, given the paucity of granular statistics about family court applications and outcomes.

[8] Though often in the context of resistance by a parent or child where the court has concluded that contact is otherwise safe and beneficial, typically where allegations aren’t proved.

[9] https://transparencyproject.org.uk/the-domestic-abuse-appeals-a-missed-opportunity-for-cultural-change/

[10] Lieven J, Russell J, HHJ Vincent for instance, although these judges are regular publishers and it is not possible to compare their output with those who publish less frequently or never.

[11] https://www.tortoisemedia.com/2024/05/13/children-at-risk-of-enduring-harm-from-abusive-parents-if-family-courts-dont-reform-say-campaigners/ (and note inaccurate reference by Tortoise to the presumption of contact).

 

The value of nothing – why is the solution always a committee?

I’ve spent some time wrangling the weeds and the invasive species in my garden this bank holiday weekend. Digging out a giant bamboo that I once used to fill an inconvenient hole in my border and which has now formed an underground network of shoots that has taken over everything. It looks good, but it has taken over the space where the flowers should be.

Too many committees are bad for your health. Also, they are terrible for productivity. The solution to every problem in the family justice world is another flipping committee. Maybe with a subcommittee or three. An invasive species. Do not expect flowers.

I’m being facetious. A bit. I’ve got a case of the grumpy old gits and the seen it all befores.

I sometimes feel as if everything I read about fancy new ideas that will divert families or resolve disputes, that will speed up proceedings or reduce harm is something that someone, somewhere suggested and probably piloted 10 or 15 years ago, before their attention was diverted by the next brilliant new idea.

I was once that enthusiastic youth popping up at committees with my own bright ideas, baffled at why the elderly ones in their forties (guffaw) were so stuck in their ways. I know now they had probably heard it all before and were furiously and silently reciting ‘if you can’t say nothing nice, say nothing at all’ like some sort of incanted internal monologue. I know that because now I’m that person. God, I hate it.

Of course, I’m exaggerating for effect. There are good new ideas and absolutely ‘yay’ for them. But separating the wheat from the dross is harder than unmixing my metaphors.

If I may be a tiny bit ‘glass half empty’ for a moment, I suppose what is so frustrating…so depressing, is how glacial change is, and how little has actually been achieved in comparison to the volume and relentless talk we do in committees. If the family justice system could divert the energy and time spent talking about great new ideas or rehashed previously-new-ideas into actually making change happen – well, things would look very different.

The amount of time that lawyers and other professionals give up for free to sit on committees each year is phenomenal. It does not always translate well into change on the ground. The reliance within the family justice system upon committees populated by volunteers is inefficient and is increasingly unsustainable. I say this as the woman who finds a committee irresistible, and who has been on more committees than I’ve seen hot takes on twitter. Chambers committees, SBA committees, judicial committees, charity committees, academic committees, ad hoc investigative committees…

I am feeling somewhat disillusioned. It’s not just the inefficiency, its the systemic taking for granted that we will give our time for free and that because membership of an important committee is seen to be a career booster, the powers that be can sit on, delay or discard the product of our toil as is convenient in the moment.

Take the Family Justice Council as an example (I’m not on it). It has an unfortunate habit of losing its projects down the back of the sofa. I’m thinking here of the Covert Recording Guidance which the council were tasked with by the Court of Appeal in 2016. A first draft was circulated in December 2018. I recall the date clearly, because I was first sent it on the day I was due to participate in the FJC annual debate on the topic of covert recording and I didn’t have time to read it (I later politely pointed out that the Data Protection Act referred to in their draft had been repealed and replaced during the drafting process with a new Act). A revised draft was sent out for consultation in…2022. Yes, that’s four years later. Again, I spent time offering what I hope was constructive feedback, but in spite of a raft of talks announcing and giving sneak previews of the anticipated guidance in 2023, the draft has not seen the light of day and the publicly available minutes (woefully out of date) have also run silent on the topic. Having enquired on numerous occasions over a now 8 year period as to the expected publication date, feels a bit like gaslighting by committee. Did I imagine that they were ever doing this? Was it all a dream?

Presumably the Draft Domestic Abuse Guidance that we spent hours commenting on in around 2020 or 2021 (I now forget) has gone the same way. Also never published.

And the Parental Alienation Guidance which was out for consultation in 2023? That’s all gone mysteriously quiet too.

It would be polite at least to update the website telling those individuals and organisations who have responded to requests for them to give up their time by responding to drafts, what is happening and what the expected publication date for these documents now is. Or, if the project has been abandoned, why that is. One suspects (perhaps unfairly) that they have gone in the ‘too hard’ box.

That is not to say the FJC does nothing. It does produce some great work, so there is lots going on – but it is the direction in which the Court of Appeal lob any tricky issue that they don’t feel they can tackle – and from the outside it appears that they are perpetually overwhelmed.

UPDATE 31 May – Jan 24 mins now up on FJC website and show some potential progress on PA (consultation responses to be considered in Feb) and Covert Recording Guidance (nearly ready). Still no actual guidance though…

The Family Procedure Rule Committee is the same. For nerds like me who read their minutes (currently with only a modest time lag of a couple of months to publication) one can see that they have a vast workload and everything has to be ruthlessly prioritised. The inability of the Rule Committee to deal with the volume of work timeously is no doubt one reason why there is increasing reliance upon informal guidance in various guises (see for example the entire FRC framework and the Reporting Pilot).

Then there are the judicial mega-committees, with vast memberships of eager lawyers (and others), producing equally vast and detailed reports. Think Public Law Working Group, Transparency Implementation Group, all with a complex network of subcommittees. The cumulative total of hours and hours of time given up by lawyers to power these committees is phenomenal. Every so often they churn out a lengthy report which is located somewhere unfindable on the judiciary website (down the back of the judicial sofa) and which most lawyers have no time to read and absorb, either because all their free time is spent on committees or they can’t afford to spend spend time on talking shops, let alone reading lengthy reports (though they might read the powerpoint summary produced by one of the committee’s members whilst off on a talking tour to spread the word).

The TIG was created in December 2021 following the publication of the President’s Transparency Review, which made a raft of substantial recommendations for reform. A few of those reforms have been implemented via the TIG (most notably the Reporting Pilot), but I challenge you to find evidence in the public domain as to what is happening on most of the rest. I’m a member of that committee (and four of its five subcommittees) and I can tell you that the cumulative hours spent at TIG meetings, and doing TIG related stuff is vast. And yet, much of that work remains invisible, unpublished, delayed, unfunded – and where things are published, I am invariably told by anyone I ask ‘nope, never heard of that’. All that work. Read by a handful of people. Because frankly, most people doing the job have enough of a time of it just keeping their heads above water.

Underlying the difficulties of all these committees is the disconnect between time given for free by (mainly) lawyers and the actual resource to convert ideas into reality. There is usually some civil service ‘support’ for such committees, but this is essentially administrative / secretarial (or takes the form of telling enthusiastic lawyers that their ideas can’t be converted into reality either because of lack of funds or ministerial interest). Judges in committee can say ‘make it so!’ in ten different ways, but if there are no resources to make it in fact ‘so’ the committee is just decorative and the time and energy given by the lawyers wasted. I have personally and in ten different (increasingly irked) ways remonstrated about the essential need for an Anonymisation Unit to support safe publication of judgments, but since nobody is willing to fund it, and Transparency Implementation Group has no magic beans with which to implement, there is no Anonymisation Unit and all those many, many hours thinking up new ways to say the same thing are down the toilet. What is the point if there is no money?

Of course I hear you say ‘well nobody is making you join, and nobody is forcing you to respond to that consultation’. True. I could just stick two fingers up to all the committees I am on. But the reasons why lawyers join committees are layered and complex, and are about far more than career advancement. It’s true that membership of a committee is something to put on a CV, and is a useful means of networking. But more than that, we do it because we think we have something to offer and want to help – perhaps we are frustrated about practice in a particular area and think we can help to improve things. Many of us have a sense of duty to give back to our legal committee, and I for one find saying ‘No’ very difficult. But membership of a committee can be interesting and invigorating. One can learn and gain experience and insight, make connections, satisfy ones general nosy instincts, better understand just WHY it is that changes that appear obvious from the outside are actually really hard to achieve in practice. I have greatly enjoyed much of my time on committees, have met some fantastic colleagues and friends and have seen just how much collective energy is there to be harnessed. And sometimes – just sometimes – you are able to cut through the inertia or groupthink and through the committee see your idea become a reality. So I do and I will keep on trying, in spite of the frustrations.

In most walks of life where a professional is expected to spend not insubstantial amounts of time and give their expertise in order to enact reform they would (not unreasonably) expect to be paid, if not for their time at least their expenses. I’ve only ever been on one family law committee which offered travel expenses (and when I was younger and more skint and meetings could not realistically be attended remotely, I would not have been able to afford to continue on it without). Whilst there are many powerful motivators that will ensure that most committees are reasonably well populated, my anecdotal observation is that there seems to be a general dip across the board in reliability of attendance, inability to commit to projects above and beyond attendance at committee meetings, and in the ability of committees to finish what they have started or to get through the work. And that is because, at a system wide level, everyone has too much on their plate.

An already overloaded system really should not be dependent on an army of volunteers racing from court to advocates meeting to committee meeting to the extent that we are (and of course if its not doing stuff for free via committees we are expected to do stuff pro bono for those who are no longer eligible for legal aid, or almost for free via the QLR scheme). Some of our more burdensome committees really should involve some element of reimbursement or allowance for those takin on more demanding roles or for those who might otherwise be excluded.

This is not new, it is deeply embedded in our culture. It was never particularly healthy, but now everyone is perpetually near burn out it is increasingly unwise. I remember once, a long, long time ago, a well intentioned senior leadership judge asked me to draft a guidance document for litigants in person, basically to redraft and condense the book I had just published to be distributed for free. I was not long out of maternity leave, had exhausted my aged debt, was trying to get my practice back on its feet and terribly worried about money. Of course I wanted to be involved in some project that might help others and get me noticed, but how could I? I took a deep breath and asked him what funds were available. As I had fully anticipated, answer came there none and the idea was instantly dropped. It takes only a moment’s thought to realise that this request, which involved me giving my intellectual property away for free, spending many hours for free converting it to a format which could have the judiciary’s stamp of approval put on it, and potentially robbing myself and my publisher of any future return on investment for the many hours spent writing the book – was exploitative. I said no to that request (by asking to be paid) because I simply couldn’t afford to do what I was asked.

My senior leadership example is an extreme one, but that judge who asked me to give away my time and work for free put me in a really difficult position – and it was entirely normalised. He probably thought I had a cheek for asking. Our entire system is built upon the normalisation of squeezing free work out of lawyers, some of whom probably really don’t have time to give. I think we have to ask ourselves the question – how much of our system relies upon exploitation of those who can’t say no, and does our reliance on those who can give their time for free exclude some from a seat at the committee table?

I now routinely say no to commercial organisations who offer me the ‘opportunity’ to spend hours preparing a talk and speaking for free so that they can monetise my work on their website or conference. No darling, I don’t need the ‘exposure’. Whilst for a junior lawyer wanting to be seen the quid pro quo may well be worth it, ultimately this is a practice which exploits our insecurities as lawyers. It is a practice seen across the freelance world, and freelancers with an ounce of business nous or self worth simply ask ‘What’s the fee?’. I’m happy to give my time for free where its genuinely needed, but I won’t do it to line someone else’s pocket, to be exploited or taken for granted.

If we truly want to build effective and diverse committees full of the best ideas, and if we want to improve our conversion rate from committee paper to reality, then we need to be better at respecting and valuing people’s contributions. We need to find ways of squaring the platitudinous ‘wellbeing’ messaging with the reality of what is expected of us all just to keep the system ticking over, let alone improving it for the future.