Category Archives: transparency

‘What went wrong’ – are we asking ourselves the right questions?

Some commentary I’ve heard and read in the wake of the murder of Sara Sharif features the familiar questions that have been asked after so many other child deaths – ‘What went wrong? And ‘Why does this keep happening?’

This post is only concerned with the role of the Family Court. It doesn’t consider what happened after the Family Court was last involved in 2019, and the role of other agencies such as the school and social services – there are lots of good questions about that, but those are for another day and another blog post.

So what about †he Family Court? Some people clearly think its self evident from the basic facts that something went wrong: the Family Court knew there were allegations against him, approved her placement with him and now she’s dead. Ergo, something went wrong. Of course, it isn’t actually that simple.

In his ‘anonymous judge’ judgment arising from the media’s application to access documents from the Family Court relating to decisions made about Sara and her siblings (which is due to be dealt with on appeal next week) Williams J appears to suggest that perhaps nothing ‘went wrong’ and the system was working as it always does and that the decisions made by Sara’s judge(s) were typical and likely to have been made regardless or which individual judge had the case in their list on the day. It probably isn’t that simple either.

I’ve read both Williams J’s comments (which are better informed than mine as he has seen the documents) and this account in the Guardian, from journalists who had also seen at least some of the same documents (I’ve also read various other accounts in the media but this one is pretty much as detailed as it gets). It’s difficult to know what to make of these two very different perspectives without sight of the documents themselves, but I have questions that are not answered either by the journalists summaries of what they have read or by Williams J’s assurances that it’s all pretty normal fare (my summary). For me, this case, and others like it, raises a heap of complicated questions that don’t all pull in the same direction. I don’t know whether any individual or ‘the system’ did anything out of keeping with accepted good practice. Perhaps. Perhaps not.

But, leaving aside for one moment what the ‘typical hypothetical judge’ might have done in those earlier care proceedings, or, if confronted with the decision about her residence in 2019 – I am readily prepared to accept that accepted good practice, or established real life practice (perhaps not the same because resource limitations in every system force a gap between the ideal and the real) could be improved.

Even if Williams J is right that there is nothing surprising in the way the Family Court responded to the evidence before it in this case, bearing in mind the legal framework (and resource backdrop) – a powerful retort to that might be this: if this is what the system considers ‘good enough’ then it needs an overhaul, because with proper resource and attention the risks ought to have been obvious and a different decision might have been made. And in a way, the Williams judgment seems to sort of hint at that by referring to resources. ‘If you want us to do things differently or better, fund us properly’ it appears to say. The family justice system is, like many other of our systems and institutions, suffering badly from underfunding and you would be hard pressed to say that isn’t so.

It will likely be said during the appeal next week that a lot of what is in Williams J’s judgment, including his review of his predecessors handling of the cases involving Sara, is irrelevant to the question of the identification of the judge. There is authority to support that being so. But, regardless of whether they were a necessary and proper commentary to include in a judgment, some of the comments on the system are illuminating (whether one agrees with them or not). I suspect that they will resonate with many family lawyers and judges – the sense that judges (just like others in the family justice system) are acting in good faith and doing their level best with inadequate resources and time, is strongly felt. If we are honest with ourselves, we all know that the perfect makes way for the adequate in the Family Court just as it does in any institution – and sometimes it makes way for the inadequate, as judgments arising from successful appeals tell us. We are not working in a perfect system and of course individual judges are not personally responsible for the resource environment in which they must operate. The fear underlying the remarks of Williams J is that the naming of the judge will result a witch hunt which attempts to make an individual responsible for systemic issues. I don’t think he is alone in that anxiety and I understand it. The new Chair of the Bar made a similar point in her powerful inaugural address this week – that the family justice system is important, and can play a crucial part in reducing violence against women and girls – but only if it is properly resourced.

Whenever I am thinking about the role of the judge and how they are (mis)understood in the world at large – and what we should and should not expect from them – I remind myself of the wisdom and humility of former High Court Judge Sir Mark Hedley. Today I pulled down my copy of ‘The Modern Judge – Power, Responsibility and Society’s Expectations’ again to locate these words:

Judges are, however, united in one view: their own fallibility. None of us is right all the time; no human being ever is. You cannot do the job I did for very long without that becoming very apparent. Humility is an essential quality of the good judge, not always easy

Later, in a chapter which considers the relationship between truth, proof and justice (and our fact finding process) Sir Mark says this:

Could all this be done better? Of course the answer must be ‘yes’, and we need to ensure that proof and truth more exactly coincide. However, the inherent contradictions and fallibilities of our own judicial system, not to mention the activities of those who for their own reasons are anxious to evade the truth, probably mean that things cannot be done radically differently. Society commits to judges both great power and great responsibility in the individual case, and does so in what should be the full knowledge of the inherent fallibility of any human system of justice. Thus, if as a society we are to have a politically and morally acceptable system, we must have an uncorrupted, well trained, and independent judiciary who enjoy the trust of that society.

And so we come back full circle to the need to ensure public trust in the judges in whom we vest so much power. Which of course is why the ‘anonymous judge issue’ matters. To command respect and maintain trust you have to understand power and be ready to be accountable. But the anonymity point is a matter the Court of Appeal will look at next week and not the subject of this post.

In any event, it isn’t just about names. Trust is also build by being willing to permit, to take part in a more sophisticated public discussion, that focuses on lessons, on learning and on change rather than personal blame – and it is also built by individuals within the system being willing and able to listen and hear uncomfortable perspectives. That is as important as the identity of the judge.

So, the real topic of this post is to prompt some thought about what we as a society are asking or expecting Family Courts to do on our behalf? It is easy when a child is murdered to fall into the trap of demanding, expecting the powers that be – whether that is the state or government generically, or specifically social services or the Family Court – to prevent all child abuse and murder. A great ideal but it takes only a moment’s thought to know this is unattainable. That doesn’t mean of course that we shouldn’t strive to reduce, as far as possible, the numbers of such terrible events. We should absolutely strive to do so, and scrutiny of what we did last time around – and why – and whether we might be able to change and improve our responses next time – is an essential part of that task.

But what I think gets lost in these ‘well obviously something went wrong in the Family Court’ comments – is that the Family Court is not actually tasked with removing all risk. That just isn’t the job of the judge and if we think it is we are starting from the wrong place. The Family Court judge is tasked with identifying, evaluating and managing risk and trying somehow to predict the risks, to weigh up the options and to find best outcome. Its job is to do so based upon the evidence it has available. There is no crystal ball. Inevitably that evaluation, made by humans and based on the evidence produced by humans, will sometimes turn out to be ‘wrong’ in the sense that something awful still happens. Something that was a known risk, serious but unlikely ever to actually happen, will in fact happen in a low proportion of cases. That is part and parcel of how risk management works. One of the continuing failures of the family justice system is the near absolute failure to track long term outcomes for the children judges make long term decisions for. Bar in cases of child death most judges never know if their decision turned out well for the child or not. Which makes it pretty hard for individual judges or the system to learn from its mistakes.

Back to the role of the individual judge, though. To put it another way – we would not want judges to only make decisions that produced a ‘no risk’ outcome. If they did then vast numbers of children would be removed from slightly flaky but loving parents, and would suffer all the inevitable harm that such separation entails, all to avoid a small chance that their mum’s or their dad’s flakiness might one day result in significant harm. Not only would we not want this outcome as a society, it isn’t what the law provides for anyway. Written into our domestic law and the European Convention on Human Rights are the core requirements of necessity and proportionality. The Children Act 1989, which is the backbone of decisions made by judges on these difficult topics, includes (of course) harm suffered and risk of harm, parenting capacity etc – but these are not the only issues to consider and evaluate and nor should they be. It was precisely to ensure that sledgehammers were not used to crack nuts that Parliament took care to restrict the ability of the state to swoop in and remove children from their family altogether by s31 of the Children Act, which introduces a threshold or gateway minimum level of risk that has to be crossed before such action is permitted – and all of that prior to an up to date evaluation of risk to allow for parental change and a balancing of pros and cons. (With regard to Sara’s case and how this applied and was all carried out, I don’t think there is yet enough information in the public domain to comment meaningfully, though there are some obvious questions in my mind, and so I am talking in quite a general sense here.)

Again, Sir Mark Hedley has some insight to offer. Firstly, in the familiar words of Re L from his judgment 2006:

Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, whilst others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the State to spare children all the consequences of defective parenting. In any event, it simply could not be done. … It would be unwise to a degree to attempt an all embracing definition of significant harm. One never ceases to be surprised at the extent of complication and difficulty that human beings manage to introduce into family life.

And more recently, Sir Mark was interviewed on Radio 4 shortly after the verdicts and before there had been time for much news coverage of the Family Court’s role, and he explained to listeners that family judges don’t have some roving power to do whatever they like, such as removing children whenever they want – they have to work within the framework that Parliament has given them. He was talking about the fact that it is social services who have the primary role to intervene by applying to the court if they thing there is a risk of significant harm (care proceedings), and that the most a court can do in a case brought between parents (private law proceedings) where the judge is worried about the risk of significant harm is to order a specific type of report asking social services for their view on whether there is such a risk (s37 Children Act 1989).

Most cases before the Family Court involve some level of risk: Domestic abuse. Emotional harm. Adult conflict. Poverty. Mental health difficulties. Substance abuse. Criminality. One or more of those will feature to a greater or lesser degree in almost every single one of the tens of thousands of cases before the court each year, and with each comes risk of harm (some serious, some trivial, some very likely, some remotely likely). Where the local authority think the risk is likely to be significant they should bring care proceedings, which the judge will then deal with. The job of deciding how much risk is too much risk is not a science and in many cases there is not an obvious ‘right’ answer, but this is nonetheless what judges (and social workers) have to do every day. And it’s really tough. Every judge knows what Hedley articulated so clearly – it is impossible to get it right every time. And that in trying to protect you can end up causing more harm than good.

I sometimes hear social workers talk about ‘holding risk’, although these days they more often seem to operate from a defensive position, trying desperately to eradicate all risk. Last week I saw a comment on LinkedIn from a social worker articulating why this is problematic. Here is an extract from Richard Devine’s post entitled ‘Why It Isn’t My Job to Keep Children Safe’ (with kind permission):

At first glance, keeping children safe seems like an obvious description of our job. It’s even in the job title—child protection. We protect children from harm, and intuitively, the inverse of protecting children from harm is to keep them safe.

But I’ve come to realise that this framing is flawed. Keeping children safe is not our job.

This isn’t to say that safety isn’t important—it absolutely is. However, the idea that it’s solely our responsibility is an unattainable ideal. If we measure our success by whether a child is entirely safe, we set ourselves up for futility and burnout, because no matter how hard we work, we will almost certainly fall short.

Our job is not to guarantee a child’s safety but to help parents ensure their children do not experience significant harm.

This shift in perspective is profound. It acknowledges that some level of risk and harm is inevitable, even in the lives of children we work with. Our interventions aim to reduce significant harm, not to eliminate all forms of risk—a distinction that is critical yet often overlooked.

I’ve quoted Richard because this applies as much to judges as it does to social workers. And when we ask questions about what happened in Sara’s case, and in the many others like it, we do need I think to hold in mind that the job of the judge is NOT to keep every child safe all the time. It is to promote their overall welfare, keeping safety and risk in mind as important but not the only factors. It is to choose the best of a range of options – sometimes each one of them involving a degree of imperfection and risk. If we wanted to keep every child safe all the time we would both need to change the law and to resource the system in an entirely different way. And I’m not sure we would much like the results if we did.

There is always scope for improvement by the Family Court in how it gathers information in individual cases and in how it identifies, manages and evaluates risk in those cases. It is absolutely legitimate and necessary to be asking probing questions. And the court should welcome those questions, because they will help us all to do better, and to be the best we can be. But we should never forget the inevitable limitations of a system run by imperfect humans for other imperfect humans, and that any such system is only as good as the tools and the rules it operates with and within.

One further thinking point from me – in 2017 the then President Sir James Munby, following a child death where the Family Court had been involved (I think that of Ellie Butler) issued Guidance around ‘Judicial Cooperation with Serious Case Reviews’. Although Serious Case Reviews have now been replaced with Child Safeguarding Practice Reviews, the core point remains good: for sound constitutional reasons judges cannot actively participate in such reviews by interview or comment or explanation. They can and should provide all relevant material to assist the review, and when any review report identifies learning points for the Family Court, the President will issue Practice Guidance to effect the necessary change in practice.

Paragraph 10 is very direct:

The judiciary is not an agency in the same way that local authorities or the police are agencies. Nor is an individual judge. Judges have a distinct constitutional role and function. It is a fundamental principle that judges do not comment on the decisions of other judges outside the appellate process. This is why it would be inappropriate for an IMR of a judicial decision to be conducted; it would, effectively, be one judge (or group of judges) commenting upon the decisions of another judge outside the proper appellate process. It would be even less appropriate for an of?cial (including for this purpose an of?cial in the Judicial Of?ce or in the Judicial Press Of?ce) to seek to comment on a judicial decision. This principle evolved in order to protect the rule of law – it reinforces the idea that the only way to challenge a judicial decision is to do so in court, not to seek to undermine it outside the court process.

Even if Sara’s Judge(s) is/are named they won’t be able to tell us any more than is available through scrutiny of the materials before them and their judgments tell us. Since judges cannot be permitted to explain or comment upon their decision (other than through the reasons given in their judgment) it is all the more important that documents should be made available in order to inform understanding of what happened, why and whether any learning points arise. The media have been provided with a raft of documents, but at the moment the reporting I’ve seen derived from those documents probably only scratches the surface of what we might need to know before drawing meaningful conclusions.

“Paedophiles to lose parental rights” – but what does that actually mean?

[UPDATE – there is an update at the end of this post]

Last week, I found myself unexpectedly recording an episode of BBC Newscast with Sanchia Berg and Harriet Harman MP. The prompt for the episode was a reform to legislation proposed by Harriet Harman, supported by the Lord Chancellor and currently under consideration in Parliament. The amendment came about as a result of coverage of a family court case by Sanchia Berg last year. That coverage had only been made possible by the transparency reforms that were being piloted in family courts, which made it easier for reporters to report private hearings. Ostensibly, I was on the show to discuss those transparency issues, and made clear I wasn’t familiar with the detail of the proposed amendment (and there was no time to research it before the recording), but in fact the discussion was focused primarily on the proposed law reform that it was said would result in ‘paedophiles losing parental rights’.

 

The recording is now available on BBC iPlayer here. In fact, although it’s seamlessly done and imperceptible to the listener, there are some chunks of what I said which have been edited out (this is quite normal, as pre-records are often longer than the slot the finished product must fit in, but I do think some of the sense of what I had said has been lost in editing).

 

One of the things that was edited out was my query about the scope of the amendment. I wanted to go back and re-listen to Harriet Harman’s response to my query – but in fact that has gone too. I think that’s a shame, particularly because now I’ve been able to sit down and look up her amendment I can see my query was a legitimate one. My impression of Harman’s response was that it was something that hadn’t actually been considered or bottomed out, though I can’t verify my recollection by listening back to it.

 

The Newscast episode also briefly alluded to the reform of the law in 2009 to permit reporters to attend family court hearings, swiftly followed by much upset when it became clear that the reforms didn’t change a thing about how much could be reported. That was frustrating for everyone, and so this post is intended to try and avoid a situation where, like in 2009, everyone gets very excited by a law reform which doesn’t in fact do quite what everyone had assumed it would.

 

The proposed change

 

Those I have spoken to who had been following the story had understood ‘paedophiles to lose parental rights’ to mean something quite different to the actual effect of the amendments as currently drafted, and were surprised to find out what it actually does and doesn’t do. As far as I can see, the coverage of this story hasn’t linked to the actual amendment, and I thought it was important to check the headlines and media reports against the draft legislation.

 

So, in this post I am absolutely not advocating for one reform or another. I am not criticising the amendment itself – Harriet Harman gives a fascinating account in the podcast of all of the work that has to be done, and the things which have to fall into alignment to get an amendment through – it is a combination of both hard work and luck that there is any amendment at all. But I am trying to understand what this reform actually IS and to manage expectations through analysis of the amendment as drafted against the existing legal framework.

 

There are other aspects of the podcast episode which I’m not dealing with in this post – it is quite long enough. But there were a couple of oddities in the history of transparency reform given by Harriet Harman, and I don’t think she has quite got the history right. I’m also not considering what Harriet Harman said about the ‘carve out’ to preserve fathers’ rights, which is a piece of law reform history that I’m not familiar with and have not yet had time to track down and fully understand.

 

I would hope that future Parliamentary debate and media coverage of this issue is able to encompass the point I am going to explain here about the scope of the amendment, because I think that so far it is absent from coverage I’ve seen. That isn’t a criticism of the coverage to date (my explanation is far more long and windy than the mainstream media’s necessarily tight word counts will allow), but I do think it’s important that people understand what the reform will and won’t do.

 

What led to the change

 

So, to backtrack to the original issue. Sanchia reported on a case where a father had been convicted of multiple sexual offences against children. He was barred from contact with children but retained his parental rights (including a say in foreign trips, education etc). The mother of his daughter was concerned about what would happen when he came out of prison and how he might try to exercise parental responsibility (‘PR’). She applied to the court to restrict his PR. She invited journalists to attend because she felt it would ensure a fair trial and because it might lead to change. The judge did agree to restrict the parental responsibility, and according to the BBC (the judgment hasn’t been published) the judge made an order confirming the child should live with her mother, and the father is now forbidden from any contact with his daughter until she turns 18. The judge also made a barring order preventing any applications from him without permission of the judge – but the application took many months to resolve and the legal fees had to be met by the mother.

 

Sanchia tells the story of how she exposed this ‘glaring legal anomaly’ by reporting this legal issue here. You can read Sanchia’s recent piece focusing on the reform here, and the original coverage from November here.

 

What the reporting doesn’t spell out is that because the father was married to the mother when the child was born he had automatic PR, which the court has no power to remove (except through adoption). The court is permitted to restrict the PR of a married father where appropriate, which is what the court agreed to do here. Many fathers have PR because even though they weren’t married to the child’s mother their name is on the child’s birth certificate, or because that PR has been awarded by the court (these are the main routes). Under s 4(2A) Children Act 1989, the court is allowed to completely remove PR from those fathers where that is justified – but that section doesn’t apply to married fathers. In each case though, the court is required to consider the background, the risks and benefits before making a decision about restricting or removing PR.

 

It is clear from the initial report and the reports of the outcome of the case that the mother’s concerns were (understandably) not just about removal or restriction of parental responsibility, but also about potential future contact between the father and child – it is recorded in November that the mother was ‘asking the court to remove her ex-husband’s parental rights and ban all contact – direct, indirect and through social media – until their daughter turns 18’, and it appears that the father was asking for indirect contact and potentially had aspirations to more in the longer term: ‘He hopes he can be reassessed when he’s released and requests an annual report detailing how his daughter is doing.’

 

So much for the background. What does the amendment actually say and do and how does it change the existing law?

 

What the amendment says

 

When I went on the podcast I assumed that Harriet Harman had planned to amend part 1 of the Children Act 1989, which is where parental responsibility is defined and the framework for it being granted and removed is set out. Having now checked the amendment (to the Criminal Justice Bill) it does precisely that, by inserting a new section 2A. You can read it here https://publications.parliament.uk/pa/bills/cbill/58-04/0155/amend/criminal_rm_rep_0419.pdf (see page 2), but as its quite short I’ve set it out in full below.

 

“Removal of parental responsibility for men convicted of sexual offences against children

After section 2 (parental responsibility for children) of the Children Act 1989, insert—

“2A Prisoners: suspension of parental responsibility

(1) This section applies where— (a) a person (“A”) has been found guilty of a serious sexual offence involving or relating to a child or children; and (b) A had parental responsibility for a child or children at the time at which the offence was committed.

(2) A ceases to have parental responsibility for all children, for a time specified by the sentencing court or until an application by A to the family court to reinstate parental responsibility has been approved.””

 

What does this mean in layperson’s terms?

 

It means that for mums like Bethan, the mum in Sanchia’s report, she would not have had to go to court to curtail the father’s PR. Note that the conviction doesn’t have to be for sexual abuse of the child that the offender hold PR for – he just has to be convicted of a relevant offence against any child and the amendment will take effect. It would happen automatically. It would mean that (subject to a successful application brought by the father) the mother could make most decisions about the child without reference to the father. That would include foreign travel, religious upbringing, education and as illustrated here in a report about another similar case, a change of surname.

 

However, the amendment won’t stop the father making an application to court to get his PR back, and if he did, the mother would not be guaranteed to be provided with legal aid.

 

Importantly – and this is the point that I raised with Harriet Harman which was edited out – the amendment doesn’t have any bearing at all on contact. The coverage slips between the terms parental responsibility and parental rights but in fact they aren’t the same. Parental responsibility is one aspect of parental rights, but there are other rights that a father has even if he does not have PR. For example, any father, even if he doesn’t have PR is entitled to make an application under s8 Children Act 1989 (which includes contact applications) without permission. This is set out in s10(4)(a) Children Act 1989. The Harman amendment doesn’t amend s8 or s10 of the Act. S8 also allows a father with no PR (including one with suspended PR under the amendment) to apply for an order prohibiting a change of name, foreign travel or specifying the school the child should go to, or the religion they should be brought up in. That’s not to say such an application would succeed, but nothing in the amendment prevents a father from trying – or protects a mother from the consequences of him doing so.

 

If Bethan’s case happened under the proposed new law, she would still have had to apply to court if she wanted an order saying the child should live with her (which is sometimes helpful when travelling abroad or dealing with authorities), that the father should not have any contact for the remainder of her childhood or for a barring order stopping contact or other applications.

 

Just because the law says a father is entitled to apply to court doesn’t mean, of course, that his application would be successful. Given the same facts, the court would still be likely to reach the same conclusions it did in Bethan’s case – but one of the key issues highlighted in Sanchia’s reporting is the cost (emotional and financial) on a protective parent (Bethan) of having to apply, and of having to trog through the process – even when it comes to the ‘right’ decision. Harriet took issue with my suggestion that the big issue was the process a protective parent had to endure, but it is undoubtedly a huge burden for a mother like Bethan to bear, even if the court deals with the application relatively swiftly (as it did in her case). Where Harriet is right is that the answer lies in primary legislation – the court itself has to adjudicate fairly in respect of rights which exist. If it is said they shouldn’t entertain such applications at all, or that a parent with rights should have to show why these should continue rather than the other way around, then law has to change. Once it has changed, the courts will apply the new law.

 

I think this amendment will help tackle the problem of the burden being on the protective mother, but I don’t think it will completely eradicate it. If a determined and manipulative father has his PR suspended as a result of this amendment, he can still apply for the suspension to be lifted, or simply take another tack – by applying for some other order under s8, for example, arrangements for contact. If he did, the court would most likely reject them, but not before the mother was put through the process. I do think that (as in Bethan’s case) courts in recent years are much more attuned to the harmful and potentially abusive or retraumatising impact on carers and children of the court process itself, and are much more ready to make barring orders than they used to be – but these are not guarantees for an anxious parent.

 

It would be possible for an amendment to also suspend the right to apply for s8 orders, for example by amending s91(14) so that a barring order was automatic on conviction – but that isn’t currently proposed.

 

Legal aid

 

I note also that when then chair of the FLBA Hannah Markham KC was asked for a quote about this piece in November she pointed out the absence of legal aid for mothers like Bethan, and how changing the rules around legal aid might assist protective parents like her. The amendment does not alter the fact that IF the father were to apply to court the mother may well not be eligible for legal aid to respond to his application, and if a future Bethan wanted to apply for a barring order or some other safeguard her legal aid eligibility would be no different either. Again, it would be possible if Parliament wanted to, to provide for legal aid for mothers responding to applications by fathers convicted of sexual offences against children, but the amendment as drafted doesn’t do so.

 

Other related amendments

 

There are a number of other draft amendments to family law currently in Parliament. Those include ‘Jade’s Law’ (which relates to the suspension of parental responsibility for parents convicted of murdering the other parent – or, if Baroness Chakrabarti’s further proposed amendment is accepted of a sexual offence against a child of the family the other parent*), and one relating to psychologists. I’m not dealing with those here, but they are contained in a different Bill – the Victims and Prisoner’s Bill.

* error corrected

Conclusion

 

I’m not a Parliamentary process expert at all, but my understanding of the position with this amendment is that Harriet Harman is confident it will pass because it has cross party and governmental support, and even if a General Election is called before the Criminal Justice Bill that it belongs to has passed, this amendment will pass as a result of the ‘wash up’ process, which fast tracks through uncontroversial agreed law reforms before Parliament is dissolved. By my understanding therefore, although it would be possible to draft amendments that would expand the scope of the reform, so as to remove ‘parental rights’ in the broader sense that I think many readers are expecting, or which would give some legal aid protection to mother’s dealing with litigation arising from these issues- there is not much realistic potential for the amendment to be adjusted in the course of this Parliament. I might be wrong about that, and if so perhaps Parliamentarians will give some more thought to whether the amendment will completely achieve what it sets out to do, and whether it might be adjusted to achieve those aims more fully.

 

A quick anticipatory word about sexism: the heading to the amendment references ‘men’ only, which creates an impression that it will only apply to men. However, in fact the heading isn’t relevant – the substance of the amendment is drafted in sex neutral terms (‘person’) and is not limited to male sex offenders. However, the clear intention of the amendment is to protect children from fathers who are sex offenders, no doubt on the basis that the vast majority of sex offenders are (biologically) male, and in reality the reform is most likely to apply in practice to men, and to be relied upon by mothers. If a mother were convicted of a relevant sex offence my understanding is that this reform would apply equally to her. Although there are some legal differences between mothers and fathers when it comes to PR (all mothers have automatic PR which can’t be removed except through adoption, whether married or not) those differences don’t have any impact on this amendment.

 

 

Important note for non-legal readers:

 

The Harman amendment is not yet law. It is likely to become law by the end of 2024, but at the time I’m writing this post it is not possible to say whether it will be amended before it is passed, or indeed to confirm with certainty that it will pass at all.

 

Update 10 May 2024

Shortly after I posted this a related post was published by one of the team at The Transparency Project. That explained about some related amendments that were also being discussed in Parliament. I had intended to pop an update on this post to link through to that additional context – but failed to do so. However, you can read that post here: ‘Paedophiles to be stripped of parental rights’? and other failed legislative amendments.

Anyway, I was prompted into remembering by this announcement from the Ministry of Justice ‘Child rapists to automatically have parental responsibility stripped’.

As best I can tell without spending more time cross referencing bills and amendments than I have to devote to the exercise, the ‘amendment tabled today’ [10 May] is actually an amendment in the Amendment paper relating to the Criminal Justice Bill for Monday 13 May, which you can read here. The corresponding / preceding paper dated 10 May still contains Harriet Harman’s amendment as described above. The 13 May document has a set of amendments which create a new s10A Children Act and amend another bill in Parliament (Victims and Justice Bill). This set of amendments are in some respects broader than the Harman amendment (they also encompass a restriction on PR where a parent kills another), but in others narrower (the restriction on PR is only for a more limited set of sexual offences and only in respect of some children), and the mechanism for restricting PR is less straightforward.

It’s beyond my knowledge and understanding how the two sets of amendments interrelate, but I can’t see both will go through, and assume the latter amendments announced today will take priority and the Harman amendment will fall away. IF that is the case, I *think* that the replacement amendments do not remove PR as much as they restrict its exercise (by getting the Crown Court to make a Prohibited Steps Order. I don’t think that is the same thing at all, because a parent does not need to exercise PR in order to be entitled to certain treatment (for example notice of proceedings, right to be consulted, consent to adoption). I don’t really have the headspace or time to properly analyse the wording, but I think that the legal effect of this mechanism is probably quite different. Neither of the amendments stop a father from applying for contact, regardless of PR, but (as I suggested above) the power of the family court to make orders under s91(14) could be used. However, it can’t be used without an application having first been made (i.e. it can’t stop the first application before it happens) and a s91(14) order doesn’t deal with situations where a parent is notified as a respondent or potential respondent to proceedings (for example care, placement or adoption proceedings).

Anyway, much to think about and chew over. But I will leave it to others to work this through for now – I will dedicate some more energy to unpicking it all once we are completely clear what amendments are approved by Parliament. At the moment it is too much of a moving target to tackle.

Two more books, still working on that novel…

Hot on the heels of the second edition of Transparency in the Family Courts, released last week, I received these beauties in the post today. The Public Law Dictionary is a new addition to this family of dictionaries, and I am one of the authors. Other titles include Private Law, TLATA and Inheritance Act, and Financial Remedies.

It feels good to have both projects off my to do list, all finished and on my desk in glossy covered hard copy.

You can buy a copy of the Dictionaries via Class Legal here. They come in print or ebook format (including pdf if you prefer that), and the digital versions are a bit cheaper at £65.

For those who asked about discounts for the Transparency Book – the publishers for that, Bloomsbury, have kindly provided a discount code for junior FLBA members – check your inbox for that code as it went out in a recent FLBA mail out.

 

Anyway, that’s me done with legal textbooks for a while (although I have a further book project that I have long promised to do, which I probably should dust off and crack on with when the pace of life allows).

One of these days I will get around to some fiction… As I approach the half decade I am STILL mulling over my brilliant first novel…which I started when I was 18 and have been intermittently pondering ever since… I have the opening purple paragraphs written by teenaged me stashed away for when I finally think of a plot to accompany them.