Beyond belief

On Sunday morning, the London Victims’ Commissioner tweeted this:

“Father charged with rape is made party to child’s care proceedings – a shocking example of how family court continues to work in conflict with the criminal court and exposes victims and children to risk and trauma.”

There are a number of tweets from others with an interest in the family justice system in similar vein, but this one is a good illustration of the themes. The Commissioner was talking about a case reported in the Guardian under this headline:

‘Father in UK charged with rape made party to child’s care proceedings – Court of appeal overrules decision to exclude man who allegedly conceived the boy with his niece through rape’.

The article and tweet are referring to this judgment (points to the Guardian for linking to it) : S (A Child) [2023] EWCA Civ 706.

The article, by Hannah Summers, is a good summary of the decision. The headline (which Hannah won’t have written) is an unhelpful and incomplete summary of what’s going on in this case. The article also features quotes from the London Victims Commissioner, including the tweeted extract above, who is attempting to drum up support for the Victims and Prisoners Bill, which, amongst other things will ‘amend the definition of ‘victim’ …to include …children who have witnessed domestic abuse, and individuals born of rape’. From Ms Waxman’s outraged quotes the reader might reasonably assume that this Bill has potential to remedy the wrong that this case illustrates, which she identifies as follows:

‘It is beyond belief that a father who does not have parental responsibility and has been charged with two counts of rape, with concern that the child is born of rape, has the legal right to be party to care proceedings.’

The judgment itself sets out the law and rules that apply to decisions of this sort. Nothing in that judgment amounts to new law. There is nothing shocking about the application of the law to these facts from a legal perspective. That said, I understand why to some people on the outside the involvement of this man might seem shocking or wrong. I have less sympathy with professionals working in the field of family and criminal justice, who are perfectly entitled to think the law is an arse, but ought not to be shocked by an application of the established law to the facts as summarised in the judgment, which is as far as I can tell the sole source of the reporting.

In fact, oddly, both the tweet, the headline and the Commissioner’s quoted comments miss what I think is the ‘best point’ for anyone who wishes to suggest that this father should not have been allowed to play any part in the family court case about his son: namely that the father is also the mother’s uncle, who was supposed to be looking after her when she was 17. Instead he got her pregnant, and she didn’t leave for another 8 years. That part of the story is shocking, dismal etc (choose your descriptor). The judgment makes clear this is not factually disputed. The Guardian article sets it out plainly, even if the headline doesn’t. The word ‘allegedly’ in the headline is a reference to the suggestion that the sexual relationship was non-consensual – that bit is pending trial in the criminal courts.

I’m not a criminal law expert, but quite apart from the specific outstanding rape allegation, behaviour of this sort i.e. sex between relatives is prohibited by criminal law (even sometimes when the participants are both over 16) and is especially and obviously egregious where the family members are of divergent ages and one supposedly looking after the younger more vulnerable family member. Whether or not the father is found guilty of a non-consensual sex act, and whether or not he has been charged or convicted with other sexual offences apart from the rape charge that is reported, it can certainly be said that this behaviour amounted to exploitation and abuse in and of itself (in the non-criminal sense). That, in my book, makes the Commissioner’s description of this mother as a ‘victim’ unobjectionable, even though the criminal rape charge is still pending. The term ‘victim’ is widely used in relation to contested allegations when it really ought not to be, but here – on the basis of the uncontentious facts – it seems nitpicking and tone deaf to quibble with the descriptor.

Far from being ‘beyond belief’, to anyone with a grip on the relevant law, this decision is a correct application of it. One commentator has complained about other professionals being (in her view) ‘keen’ for the court to grant the father parental rights. In fact, the court hasn’t granted him any parental rights by making him a party, and he already had a right to apply, and to be granted party status absent justification. To suggest he was given something he wasn’t already entitled to is repeating the original judge’s legal error – what the commentator presumably wishes the law was, but isn’t. (Tweets suggesting that the awarding of party status has the effect of granting parental responsibility are also wrong). The only ‘keenness’ I’ve seen from lawyers is enthusiasm for the law as it is to be accurately stated and understood. If it had been applied the first time around the family would not have had to endure an appeal and would not have run the risk of a delayed decision.

It’s not just me who thinks the law is rightly set out in that decision, and that the first judge got it wrong. Three 3 of the 4 lawyers in the case went to the Court of Appeal and said the appeal had to be allowed, even though for two of them their clients (the local authority and guardian) had wanted him excluded. Only the mother (understandably) required her lawyer to argue the point, against the weight of the law. His efforts were described as ‘attractively put’ in the judgment, which is judge code for ‘nice try, but we all know that is just not legally sustainable’. We don’t have a huge amount of factual detail about the case because this is just an appeal judgment, but can be reasonably confident that if there was a decent evidence base / argument for persuading the court to uphold the decision or to remake it on different grounds, those arguments would have been thought of and presented by either the Local Authority, the Guardian or the mother’s own lawyer – they all wanted to achieve the same outcome after all.

That near consensus was because the law here is clear. On the basis of the information we have in the judgment of the Court of Appeal, there was no application by the other parties to dispense with service of notice on the father because he posed a risk of such magnitude to mother and child that this was justified. He was served with notice as the rules require in respect of any father without PR. And, as any father in this position is entitled to do, he asked to be a part of the case. This rule, and the human rights which it seeks to give effect to and balance, apply even to very nasty fathers. Even to fathers who impregnate their vulnerable nieces.

The Court of Appeal tells us the mother is extremely vulnerable’. In fact the court says it has

‘no doubt that the judge (and the local authority and children’s guardian) were focused on the importance of this extremely vulnerable young woman being supported in such a way as would enable her to play a full part in the proceedings and to give her best evidence’.

One can envisage that there might have been potential for the father’s application to have been met with positive evidence as to the harm any involvement would cause to the mother or child’s wellbeing or ability to participate – but as best we can tell that doesn’t seem to have happened. We don’t know if that is because no such evidence existed, or if its because nobody thought to present it to the judge. Either is possible given that it appears everyone approached the application from the wrong end of the telescope with the judge applying the wrong test, i.e. she approach the case on the basis that the father had to make the running – and that if he couldn’t show there was any merit or purpose in his application the advocates could all sit down. If compelling evidence had been produced on that front the decision may well have been unappealable (or left in place as the right outcome based on the wrong reasons). But it wasn’t.

There doesn’t seem to have been any attempt to have introduced that evidence on appeal, so the Court of Appeal seem to have done the next best thing in attempting to balance the competing factors: they have allowed the application for party status – but, in order to try and avoid further delay (which would no doubt add to the burden on the mother and child), they have remitted the decision as to participation to the trial court. What this means in practice is that they are requiring the court to look further at what the father’s party status should look like in practice. The judgment tells us that it will likely mean that the father will only have access to some of the paperwork, and not things like psychological reports on the mother, and that he won’t be able to keep copies. If the evidence is there to justify it, that might mean no access to documents at all. It may well mean that the father is only able to participate remotely from another location, or in such as way as he can’t be seen or heard. The court has duties to the mother as a vulnerable party to consider any requests for other adjustments that might be made on her behalf and to proactively consider measures regardless of what is proposed. If the risk is sufficiently great, the father’s participation is likely to be pared right back.

As for what impact the father’s views might have on outcome – it’s difficult to say without knowing more, but on what we know it seems quite likely that his views will not carry much weight in the overall scheme of things.

And all of that is regardless of the outcome of the pending rape charge. The rape (if proved) is an additional layer of trauma and harm (and there may be other factual matters in dispute for all we know). Even without it being proved the mother is entitled by law to be treated as a victim of domestic abuse by virtue of the fact of the allegations, with the court being duty bound to consider participation directions.

However, the suggestion that an allegation of rape that has yet to be proved should oust a father from any involvement at all in proceedings which involve the long term plans for a child is not ‘in conflict’ with criminal proceedings (where there is also a presumption of innocence); it is also really rather chilling. And more relevantly, the suggestion all rights should be forfeit on the basis of a mere allegation is just incompatible with human rights law and natural justice. And it is when courts make decisions based on emotive responses to distressing facts rather than the actual law, that cases get appealed and decisions for children get delayed, to their ultimate detriment.

The Court of Appeal don’t spell it out in their judgment, but what they are saying is that the court must balance the competing rights of the parties, must use all the tools at its disposal and must find a course which represents the least interference with those rights that is compatible with the rights of the others. In some rare cases that does involve completely shutting out a parent, but in most it involves very careful management of arrangements so that both parents can participate to the degree appropriate. The court is trying to progress this child’s decision without further delay, in a way that is compatible with the law that is there to protect all of us, children or adult, perfect or terrible parents alike.

A decision that is based on managed participation by both parents is far less likely to be the subject of a successful appeal than a decision where the bad dad is shut out completely.

I hope and expect that proper arrangements will have been put in place in order for the Issues Resolution Hearing to have proceeded fairly and effectively (based on the information in the judgment that hearing will have happened earlier this month). It is possible that a consensus will have been reached at that hearing and the proceedings concluded. If no consensus was reached the matter will most likely proceed to a final hearing, with arrangements for the father’s participation being decided in advance (probably at the IRH).

Before I conclude, a word about the proposed law reforms mentioned above. The Victims & Prisoners Bill that is referred to in the Guardian article, and which the Commissioner endorses, proposes ‘to amend the definition of ‘victim’ to include bereaved families, children who have witnessed domestic abuse, and individuals born of rape’. I don’t have any difficulty with that, it seems like a sensible amendment = though I note the Bill says seems to be primarily applicable to the criminal context and children who have witnessed domestic abuse are already deemed victims by virtue of the Domestic Abuse Act 2021. But the rape amendment would not obviously make any difference to this case (or others like it), where the rape has been alleged but has not been proved. Arguably, any child born of sexual activity that is prohibited by law (i.e. sex with prohibited relatives or children conceived by underage exploited or abused mothers, where consent is legally irrelevant and the offence is not called ‘rape’) should also be classed a ‘victim’. That additional amendment might catch cases like this, depending on its wording and the specific facts. If the Commissioner were really focused on the specific injustice of this case, as opposed to it being a convenient vehicle for making a political point, we might have expected mention of the familial relationship in her response quotes, and an amendment to the bill being proposed to capture it.

But…even if this child were defined in law as a victim of the father’s conduct, I struggle to see how Parliament could construct an amendment to the law that achieved the (apparently desired) result of preventing a parent accused of rape from any participation in a case about their child before that has been proved, without there being potential incompatibility issues. How could that ever be compatible with the human rights of the child, let alone the parent? Particularly where the more proportionate options of restricted participation and participation directions are available.

It’s difficult to know if this is a seriously made proposition, but it is the logical conclusion of the Commissioner’s complaint about what this case demonstrates and what needs to change. What also baffles me about the floating of hypothetical reforms like this one, is how it would actually pan out if achieved – if the law were amended to stop parents accused of rape from being involved in proceedings about their child, it would amount to handing an absolute veto to all parents (including the abusive malicious ones). Any law which enables one parent to jettison the other from decision making by simply making an allegation is bound to be exploited by some, potentially to the detriment of the very vulnerable groups that these law reforms are designed to protect, and to the children concerned. I think this is a case of be careful what you wish for – a process that isn’t fair to all is dangerous for everyone.

If people want to criticise the Family Court there are plenty of other things they could focus on. Unrealistic attempts to achieve complete statutory exclusion of any parent who has been identified as a wrong-un by their ex would not be my priority for on the ground advancement of the protection of children and victims.

Using Family Court judgments as a springboard for law reform is fine and dandy, but it’s unhelpful on a number of levels when problems with the law are repeatedly cast as the fault of judges, and when judgments are cherry picked for the facts that happen to more or less match a proposed reform, whilst other important context is conveniently overlooked. None of these possible (or impossible) amendments to the law are something achievable by the Family Court, the Court of Appeal or the lawyers working within those courts. None of the problems or perceived problems are of their making. Whether amendments to the law should be made and how they could be achieved are matters for Parliament.

I will follow the Bill’s progress with interest.


New Templates

Last autumn I was a bit mardy about the template orders when it came to their attempt to warn litigants about the rules around confidentiality.

You draft fool

I should have got around to politely raising my concerns with the committee that were tasked with reviewing the templates, but I didn’t. Life was a bit challenging last autumn…

However, happily, they have identified the issue anyway, and redrafted the confidentiality wording so that it now accurately and fully tells people what they can’t do without accidentally stopping them doing things they can and should be allowed to continue doing. The wording is similar to the wording I suggested last year, but actually I think its better than mine.

So we’re all good. Thumbs up. Yay.

Here is a short post I’ve just popped up on Transparency Project setting out the changes and linking to the templates.

I believe there are suggestions the formatting issues may have been improved too, but I haven’t dared look at that issue, lest it spoil my good mood.

The princess and the podcast

Still adjusting to everyone assuming I’m a fancy pants… My pants are – in fact – still a slightly off white / grey because I, like most other humans, am apparently unable to run a load of whites without a rogue sock getting in.

I do have actual new blog posts up my sleeve / in my head somewhere, but it is proving a bit difficult to find time to sit and write them. And some of them require a bit of mulling over before I do so. Hence I’m afraid I’m going to blog-cheat a little to present to you some stuff I’ve done elsewhere.

First up – a podcast. I’ve been interviewed for various podcasts before, but this is the first one I’ve made (when I say made. I didn’t do the technical bit!). Jacky and I (also a podcast first timer) thought it was surprisingly good fun to do. I dare say I will do more when time permits. The topic was Vulnerability in Children and Financial Proceedings and if you’d like to listen it’s here. It’s predominantly ‘talking to’ other lawyers, but others might find it of use or interest. Keep an eye out too for other podcasts from the St John’s crew in the next couple of months.

Speaking of podcasts, I have been listening to more podcasts lately. I highly recommend The Advocacy Podcast series from Bibi Badejo. I have learnt and re-learnt a lot from listening, and have been re-enthused about re-engaging with improving my advocacy skills. I’ve also discovered I’ve ‘invented’ techniques that are very similar to those used by other advocates, and in some instances have tweaked my version in light of listening to their process description, in other instances I’ve simply learnt a better way of describing or understanding what i’ve been doing intuitively. Bibi is both a skilled advocate and interviewer and it is a pleasure to listen to her calm, clear and straightforward communication style as well as the interesting insights from her amazing range of interviewees. As one of the podcast episodes says, it is amazing how much commonality there is between very different lawyers operating in very different fields and jurisdictions. The similarities in the skillset required far outweigh the differences in style and process between jurisdictions.

What next? A book review of The Art and Craft of Judgment Writing by Max Barrett (TLDR – I liked it, even if it did take me a year to read it).

Lastly, I tried to help give an explanation of how care proceedings work, some of which was quoted in articles about the tragic case of Finley Boden, who was the subject of care proceedings at the time of his murder by his parents.

Hopefully that’s enough to be chewing over for now. The Advocacy Podcast should keep you going for a while on its own.