What a week

Well. It’s been a week, hasn’t it?

It’s Friday night and I’m holed up in my office-cum-santa’s-grotto (one has to forge a path through the amazon boxes to reach the desk) contemplating life and everything family law related this Friday evening….the teenagers have taken over the common space and I don’t want to cramp their style. It’s rare to see them socialising, so I am happy to hear them down the hall messing about while I decompress from the week. So I thought I’d knock out a blog post.

I feel as if things have been zooming across the top of my inbox and news feed all week and it’s been hard to keep up. Here are the things that have stuck with me. You will forgive me if I don’t bother with links or references. I’m sure you can find the things I’m referring to with the help of google (if you haven’t seen them already).

We’ve had the new alienating behaviours guidance from the FJC. A long wait, and much better in final form than the draft I saw last year, which was a bit all over the place. I think it’s a useful document and much needed. It doesn’t change the law, rather it consolidates what we know (or ought to know) and provides a roadmap to not getting it wrong. It doesn’t preclude the court dealing with cases of genuine psychological manipulation leading to rejection, but it will (I hope) make it a lot harder to wave around allegations of PA at the first hint of someone saying ‘no I don’t agree’ to an entitled or controlling parent. I was a bit surprised to see that Rights of Women (with whom I agree on many things) were critical of the guidance. I don’t think it is either possible or desirable to stop the court considering allegations of alienating behaviours entirely (even if it is possible to kill off reference to PAS or parental alienation as something proved by virtue only of rejection by a child) – for example, we should not forget that in some cases the perpetrators of domestic abuse are also effective in manipulating their children into rejecting their parent. Alienating behaviours can be a form of domestic abuse, control or punishment. The two important things for me are that: if the allegation is made it is methodically and objectively scrutinised and determined, and that the court is live to the potential for such allegations to be used sloppily or weaponised – and this guidance will help on both fronts, I think.

We’ve had news that the BSB tribunal upheld findings of professional misconduct against Jo Sidhu (although they decided that much of his admitted behaviour was not serious enough to amount to professional misconduct – views on that may vary, I suspect), and that the tribunal also kicked out the attempt by the BSB to secure professional misconduct charges against Charlotte Proudman for being rude about a judge in a case she was involved in. I don’t agree with everything Charlotte says or does, and many members of the bar would not have published those tweets in respect of the judge in their case (or any judge) even if they agreed with the sentiments – but it does seem right that this was thrown out. As the tribunal concluded, judges should be (and are) a little bit more thick skinned than was suggested by the charges. They can withstand a bit of criticism. A useful reminder also that lawyers do still have Article 10 rights, albeit attenuated in some circumstances where necessary to avoid bringing the bar into disrepute.

We’ve had confirmation that the (children) Reporting Pilot will roll out in the new year to all courts in the jurisdiction – but under the auspices of an amended practice direction (27B) – and no longer a pilot. It’s baby brother the (financial) Reporting Pilot will roll out to the whole jurisdiction too, but still with its training wheels on in pilot form. One can only expect it to follow suit in due course.

We’ve had news of the conviction of Urfan Sharif and his partner Beinash Batool of the murder of Sara Sharif, release of information about the extensive involvement of social services and the family court. Two sets of care proceedings (concluding in supervision orders), and finally private law proceedings in 2019 resulting in a transfer of care from mother to father against a known backdrop of allegations of domestic abuse towards the mother and abuse of children by him in the past – and not a fact finding in sight. We don’t yet understand the full reasons for the decisions made or the information available to the judge at the time (or indeed the positions of the various parties at the point of the final decisions), but in recognition of the public importance of these questions Williams J has permitted release to the media of many relevant documents (which is how we know what I have just summarised). More controversially, Williams J imposed a bar on naming not only the social workers, but also the judge who made the decisions in all 3 sets of proceedings – and did so without advance warning to the media or any application being made. That is a decision that social media tells me is likely to be the subject of challenge. One can perhaps understand why – it is highly unusual. A wish to protect individuals from a media frenzy when the facts are not yet known may be behind it – we know from past cases that scapegoating can happen (I did a media interview yesterday and already the questions were all about what had gone wrong and who was too blame – before the facts are fully known). But. To afford a judge anonymity is rare indeed and requires exceptional justification. Particularly where the public interest is so obviously high and the information that is in the public domain begs some obvious questions (to which I don’t venture an answer as there isn’t enough information). We do not yet know what that justification is or whether it passes muster, as no judgment is yet public. We wait to see what happens on that front.

Alongside that report came a report setting out a shockingly high number of instances of death or serious harm to children each year, a reminder that sadly Sara Sharif’s case is not isolated and that it has all the hallmarks of being yet another case where there has been insufficient information sharing leading to a child falling through the net and opportunities being missed. Perhaps so with Sara, though we await the Safeguarding Review (surprisingly it appears this will be a local review not a national one). Many of the responses from people of influence (PM, Childrens’ Commissioner) seem focused on the issue of home schooling, which in my inexpert view may not be the best or only target for reform here (we don’t yet know what steps were taken by the school or social workers between Sara being pulled out of school and her death – was there a further referral or attempts to visit her, for example?). There are lots of good reasons why children are home schooled or withdrawn from school – many related to their profile of need and the inability of the state or the broken SEN system to meet those needs. I was struck when hearing the proposal that there would be a bar on home schooling for children where there are child protection concerns (what happens if they are a school refuser or have special needs which cannot be met by their named placement?), by the thought that this seemed like it might be one of those ‘something must be done’ responses. We already have the rarely used section 43 Child Assessment Orders, which might conceivably do the job without ramping up the situation in the way that proposals to ban home schooling where there is CP concern might do. What children removed from school in concerning circumstances like Sara (after a child protection concern about bruising was raised) need is EYES on them, social work, assessment. I don’t offer any firm view on the ‘right’ answer to this, but wonder if it might be better to look at reform with a clear head than in the febrile 48 hours after a conviction. Otherwise we may risk unintended consequences or more ‘we must never let this happen again’ which sounds good but doesn’t actually improve anything. That said, these are my thoughts in the 48 hours after conviction and they may be immediately shot down as wrong headed. But it would be good if someone would look at the laws and powers that we do have before racing to make new ones.

What else? The President of the Family Division published his first Annual Report, first promised in 2021 last week. Whilst long awaited, in fact it doesn’t contain much we didn’t know already, and appears to include statistics on case duration that don’t quite match those released by HMCTS today.

There is probably more. But that’s really enough isn’t it? A lot to ponder on for one week. All alongside our own cases – cases about real children whose words we read, whose faces we see, and whose lives we pore over – alongside whatever joys and stresses are happening at home in our own families. I have been reminded in recent weeks that for every overworked barrister maintaining a professional facade there is a personal and family life that continues and requires their input and attention. The illness or mental health challenges of children, partners, parents or spouses. The pressing appointments and tasks that need to be attended to for their sake or to maintain our own health. All alongside a working diet of sadness and trauma in the things we read, hear, analyse and dream about.

So, next week I will be winding down for Christmas. I still have some work work to complete, but I will also be carrying out important life admin – making medical appointments, liaising with SENCOs, visiting elderly family members, spending time owed with the kids and preparing for Christmas and a bit of a break before starting it all again in the new year.

And breathe….Cherish your children, cherish your family.

Excuse me, I must break off to quel some over excited teenagers and an xbox….

The Law Show

I had to get up at 5.30am to make it to the studio to record The Law Show for BBC Radio 4. I was somewhat sleep deprived anyway as a result of having a hurty leg over the weekend (don’t laugh it’s been excruciating). I woke groggy from some interesting new medication with no idea where my respectable clothes were. And so it seemed reasonable to dress, as they say, for radio.

Only they had CAMERAS. Goddamnit. Fortunately, they didn’t spot any hot takes that they wanted to show a clip of. So you will never know how quite how rough I looked. In fact I don’t even know why I’m confessing this here.

Anyway, I had intended to post something here in advance of the show airing and failed dismally to remember, but lucky for you it’s still available on BBC Sounds and is re-airing next Tues evening at 9pm.

So, fill your boots. The Law Show – on family courts. Me, Sanchia Berg, Samantha Woodham and host Dr Joelle Grogan.

Hopefully a bit informative and interesting.

Watch here.

 

 

Book Review: “Child Care and Protection: Law and Practice”

This is a review of “Child Care and Protection: Law and Practice” by Safda Mahmood and Julie Doughty (7th edn, 2024, Wildy, Simmonds & Hill) by Dominik Morton, Barrister at St John’s Chambers.

 

Dominik MortonA little bit about me first of all. I am a barrister at St John’s Chambers in Bristol. I was called to the Bar in 2018. Since that date, I have had a private and public child law practice and have dealt with a variety of different cases. Therefore, offering to review this book made sense and provided me with a helpful reminder of legal topics, old and new, with accompanying analysis and law.

What should be noted from the get-go is that this book has been written by two very experienced authors. Both authors have written extensively on a variety of topics and issues relevant to this book. Perhaps more importantly however is the fact that both authors have been practitioners for a considerable amount of time. Therefore, the breadth of legal topics covered within this book, along with their application and use within practice is striking and very impressive. It was pleasing to note that this book has been written with practitioners in mind and has a particular focus on public and private child law.

The book itself does not cover every single topic that has or might crop up in family cases. However, in fairness to the authors, it would be extremely difficult to cover everything in sufficient detail and for it to remain concise and digestible in order for practitioners to use whilst working from home, in chambers or firms, or at court.

Book Cover image

What the book does do is capture all of the key areas and strands of child protection in order for practitioners to refer to. More importantly, it has covered a huge number of legal changes since the author’s last publication back in 2019, with specific references and analysis on updating legislative provisions, regulations, practice guidance, and case law.

Each chapter of the book deals with a different topic but all chapters seem to be interlinked in some way, thus making it smooth and logical to follow. What is very helpful to a practitioner is that each chapter has a break-down of the issues that one must bear in mind and makes specific reference to legislation, regulations, practice guidance, and case law (old and new) on each point. This makes the job a lot easier, especially when one is aware of a specific provision or judgment on a particular point, but one cannot recall the title or name of that provision or judgment. Having all of these key provisions and judgments, along with specific references and paragraph numbers, in one place and easily accessible is ideal and makes it very handy especially when one is out and about.

The authors have also provided references to additional case law, practice guidance, and even legal research for those who have a bit more time to prepare and conduct their own independent research. These references are provided but not expanded upon in detail, which means that the book remains concise and to the point, whilst being as comprehensive as possible.

What is also lovely to see within this book is that the authors have provided some helpful critical analysis on more recent topics and issues, with specific reference to provisions and case law to back up what is being said. Two examples of this are (1) funding implications on experts following the 2022 Legal Aid Agency guidance, and (2) deprivation of liberty cases and the ongoing difficulties particularly with regard to available placements. There is also consideration of topics that are still being grappled with to this day. One example being the issue of transparency within the family court and how this is changing and is likely to change in the future.

The use of flow-charts, list of abbreviations, and glossary of key terms is very much welcomed and is a helpful reminder to all practitioners of procedure and terminology used in and out of court which can get a little convoluted and difficult to follow at times.

Given that this book is aimed at practitioners, I was of course expecting to see some application of the law in practice. What I didn’t expect to see is that each chapter has a section dedicated solely to “Practice and Procedure”. On top of that, there is a specific chapter (chapter 11) which deals with “Instructions and Case Preparation in Family Proceedings”.

The whole of chapter 11, along with the specific sections within each chapter devoted to practice and procedure allow practitioners who have been in the game for some time to reflect on how they approach cases. For new practitioners who are feeling overwhelmed and dauted by the idea of being in a family court, the focused sections within each chapter on practice and procedure, and chapter 11 in its entirety, provide a helpful nudge in the right direction and provide a brilliant foundation to what will hopefully become a successful practice.

Overall, it is probably safe to assume from the review thus far that I am very impressed with this book and will certainly be using it in my day-to-day practice moving forward.

The only point which I would like to make by way of constructive criticism is that there are sections within this book which are, at times, difficult to read and follow. This is not a consistent issue that runs throughout the book, but rather crops up every now and then by way of wordy and dense paragraphs. This does make certain sections of certain chapters not as digestible as the authors may have hoped for and might cause some practitioners who are frantically trying to find a specific reference to miss key and relevant information.

Everything else is spot on with this book. Clearly, the authors have done a lot of hard work to tie everything together within this edition. All practitioners have to do is read it, apply it, and reap the benefits. I therefore would definitely recommend this book to other practitioners.

 

This book is available to purchase here for £45.