Stalking Napo

A long time ago in 2011 I wrote a blog post that was critical of Napo: the blogpost ABUSE OF PROCESS: DRAMATIC EXTENT OF STALKING IN THE FAMILY COURTS concerned the publication of a "dossier" of family court cases said to support the proposition that family court processes were being abused by convicted stalkers (published by Napo and PAS). Harry Fletcher, Assistant General Secretary of Napo, in a press release at the time said it was "outrageous" that "perpetrators of child abuse, murder and rape were given legal aid to continue to torment their victims through the family courts. This appears to have been going on for many years and has caused untold stress to victims and families. It is crucial that these vexatious applications be struck out".

It was a punchy soundbite, but I didn't think that the dossier made out the case at all, even if the underlying point was a good one. And I was worried that Napo had published a document that gave a very poor impression as to the impartiality of CAFCASS and did not advance public confidence in the family court system. More particularly I was worried that the material had been published in breach of the law concerning publication of information arising from family proceedings. In a year when at least one parent and one campaigner had been held in contempt of court for breach of that law (albeit a breach of a specific injunction rather than the rules per se - see Doncaster MBC v Watson [2011] EWHC 2376, the last in a series of judgments in that case [update 5 July : in fact there is a later judgment Doncaster MBC v Watson [2011] EWHC 2498 which deals with the question of whether the court could make a suspended order on an application to purge]), I thought it was unlikely (and yet on one level unsurprising) that an organisation like Napo would have, in conjunction with CAFCASS Officers, breached those court rules for the sake of a publicity campaign. On the face of it this seemed to be what had happened, which I thought rather extraordinary. So, before publication I tried to get in touch with Napo to make sure I had my facts straight. I asked how the case studies had been obtained, whether they were from a single source and whether the facts had been verified in some way. I asked if the other parties involved in the case, their lawyers or the judge in the case had been consulted. And I asked if judicial permission for disclosure of the information had been sought and received. I heard nothing.

I tried again shortly after publication, linking to the blog post, reiterating my previous questions and offering a right of reply. I waited for some time and, having heard nothing, made some Freedom of Information Act requests.

As suspected, they were returned on 5 March confirming that the "dossier" had not been compiled from an "approved research project" and I concluded that it was probably published in breach of the law concerning publication of information arising from family proceedings.

You can read the Freedom of Information Act requests and responses here:

http://www.whatdotheyknow.com/request/cafcass_research_projects#comment-26805

http://www.whatdotheyknow.com/request/communication_of_information

http://www.whatdotheyknow.com/request/approved_research_projects#outgoing-190905

On 29 March I tried to contact NAPO again, setting out the background and providing details of the Freedom of Information Act requests. I explained that I wanted to write a follow up post setting out what the Freedom of Information Act requests appeared to show, and making clear I wanted to write a well informed and fair piece on what had happened.

And then things started to happen. On 2 April I was contacted by Jonathan Ledger, General Secretary of Napo. My emails had not, it seems, been passed on to the relevant person. By 6 April I was contacted by Tony Mercer, Napo National Vice Chair with responsibility for the Napo Family Court Section in Cafcass and the Napo Family Court Committee where, I was told, the blog had already triggered some "very useful discussions". Napo asked to meet with me.

The gap in the chronology since then has been down to difficulties arranging a mutually convenient date for that meeting, but on 25 June, more than 6 months after my original blog post, I got an answer.

In short: Napo messed it up. It won't happen again. I had a lengthy meeting with three representatives from Napo, including Andy Stanton and Tony Mercer, in which they candidly acknowledged that the concerns I had raised in my original blog post were valid. I'm don't want to beat up Napo over this, particularly since the three very nice Napo people who took the trouble to travel to meet with me were plainly well intentioned and hard working practitioners with a wealth of experience in the field and who struck me as appropriately concerned, and anxious to turn this into a learning experience. I've been saying for a long time the law in relation to disclosure of information is a mess, that nobody understands it, and that it needs reform. Such propositions are scarcely controversial. But it is significant that we are enforcing (albeit rarely) our privacy laws against parents when such shocking (and frankly sloppy) breaches pass without so much as the raising of a judicial eyebrow. But I do feel that I need to finish the story as it were, part one of which was the first blog post. I'm pleased to have been able to have Napo's input to part 2.

It may be worth summarising the law about disclosure of information in children cases here. Under s12 Administration of Justice Act 1960 it is prohibited to publish "information relating to proceedings" that concern children unless court rules or an order provides otherwise. Breach of s12 Administration of Justice Act 1960 is a contempt of court. Case law tells us that "information relating to proceedings" is drawn quite widely and is not limited to information which might identify a child (the publication of which during proceedings is prohibited by s97(2) Children Act 1989, breach of which is a criminal offence). In the absence of an order relating to a specific case Part 12 Family Procedure Rules 2010 and Practice Direction 12G information may be published by means of an authorised research project, which requires the written permission of the President of the Family Division or of a Secretary of State after consultation with the President of the Family Division (or which is conducted under s83  of the Children Act 1989 or s13 of the Criminal Justice and Court Services Act 2000 which does not apply here). There are other circumstances set out in the PD in which disclosure is permitted by certain individuals to other individuals for specific purposes but none which are relevant to this case or which provide for the publication of information to the public at large.

Of course it isn't just the potential contempt of court issues here that are in issue. It's the substance: the alarming comments that a number of CAFCASS Officers have said publicly through this document, which disclose in my view pretty prejudicial attitudes to applications by fathers who have perpetrated violence - and which the leadership of Napo, if not its family court committee, did not think required editing before circulation. It's a PR disaster for CAFCASS (although they don't seem to have noticed) and one which has potential ramifications in terms of public confidence in the family court system generally and in CAFCASS more particularly, which is already at a critically low ebb.

So how did such car crash PR happen? To understand that you need to understand that Napo is the trade union and professional body for a varied mix of probation officers, family court advisors, family support workers and guardians. Napo tell me that:

Napo was introduced into Cafcass by the Family Court Welfare Officers who transferred from the Probation Service and it became the largest Trade Union in Cafcass with joint negotiating rights for Family Court Advisers (the main grade practitioners in both Private and Public Law), Service Managers and Family Support Workers.  The Napo Family Court Section has continued to recruit ex-LA Guardians and new entrants who have no historical connection with Probation or Napo.  Membership of the Napo Family Court Section has consistently hovered around 600 (about 50% of all those eligible to join), which is a fraction of the 8000 odd Napo members who work in Probation.  

So, it was historically a probation service representative body, although this of course originally incorporated the family court work which is now the role of Family Court Advisors. With the creation of CAFCASS in 2000 Napo membership was opened up to other categories of CAFCASS employees including Family Support Workers / Family Court Advisors / Guardians. Today, I am told, the family members comprise 552 of a total membership of 8157, and the Assistant General Secretary, Harry Fletcher has responsibility for Publicity and Campaigning for the whole organisation. But he is not a family court man, he's a probation man.

Yet it was Fletcher who headed up the Napo/PAS stalking campaign, and Napo tell me that :

As an afterthought Harry Fletcher approached Napo members in Cafcass directly for "evidence" of abuse of Private Law proceedings.  In doing this he inadvertently by-passed the Napo Family Court Committee, which is responsible for campaigning on professional issues in the Family Justice System and which should have vetted the information that was gathered.  Napo has given an assurance that such a blunder will not happen again.

So this campaign, which draws on information provided by the family section membership, which has potential to affect the reputation of those members and of their representative / professional body, and which makes some pretty bold policy statements (I'm thinking here of the proposal to remove fathers PR by way of criminal sanction) - didn't go through the Family Court Committee before publication. That's a pretty massive process failure.

So, the answers to those questions. Napo tell me that:

  • An email questionnaire originating from Harry Fletcher was sent to all the members. I don't know what the questions were (and nor did those at the meeting I attended), but it appears the respondents self selected. It appears that all the respondents who submitted a case were published (i.e. 33 of 540 members, assuming that no one respondent sent more than one case study which is far from clear), although I could not get confirmation of this.
  • No verification, quality control, or consultation was carried out. Neither the other parties in the case nor the judge were not notified. It follows that no judicial permission for publication was sought.

I've asked Napo about the pretty obvious flaws in terms of evidence gathering and quality control. I've seen guidance they've prepared giving an example of a permissible exercise "Napo asks members to identify the percentage of cases in which parties appear to be vexatious litigants". It seems to me that although asking that type of question won't offend against the privacy rules it will not produce any evidence of value. Not only will it be subjective, it will be stripped of any qualitative information which would enable any objective assessment to be carried out. This is a question of doing proper research not pop quizzes, and I think Napo need to do some more thinking in this area. Whilst a "market research" type approach might be sufficient in some fields of PR its simply inappropriate when it relates to the court system itself, where evidential rigour is central. There is nothing to stop them carrying out approved research projects or obtaining judicial permission in future to get around the privacy rules.

On a more basic level it seems to me to be obvious that before a document containing legal information is published and widely distributed it should be checked by someone who is cognisant with the area of law in question, as well as someone who understands the political sensitivities of the topic under discussion. The dossier very obviously was not scrutinised by either: it misstated the law, it confused court process and peeved those who expect better of CAFCASS than crass gender bias (that's me). Such confusion about basic court procedure and about basic article 6 matters is not just a proof reading / PR issue - the confusion originates from CAFCASS Officers on the ground who have reported their own understanding of what is happening in court. A good proportion of the 33 respondents to the questionnaire appear to have a pretty poor understanding of court process, a negligible understanding of the law relating to children and domestic violence and a dogmatic or formulaic approach to cases involving perpetrators of violence, which was not apparently tempered by any appreciation of the need to ensure a fair trial and due process in the determination of civil rights and where the court is interfering in the article 8 rights of parent and child. What's more they appear not to understand the privacy rules themselves, happy to pass information onto Napo. That is a training issue (maybe even a performance issue). We should not forget though, that Napo has 540 members, that the views expressed through the dossier may not be representative and may appear to be more inappropriate than in fact they are because we have insufficient facts to assess their validity.

However, I asked Napo to give some thought to their position in respect of this. Do they stand by the views of their members as set out in that dossier? Or are they able to identify that some of their members need to brush up on the law, on some core principles, and strive a bit harder to be impartial? The initial response, with which I have some sympathy, was that CAFCASS workers who wish to go on training events other than in house or free local safeguarding board training must take annual leave or use TOIL to do so. There is no meaningful training budget to facilitate this kind of learning or professional development. I think that CAFCASS themselves should consider the dossier and make training on these issues an urgent priority. I won't hold my breath.

Since our meeting though Napo tell me that

the Family Court Committee will seriously address the prejudice and legal ignorance that was displayed in some of the submissions from Napo FCAs, which were highlighted in this blog.

Good on them for fronting up to that difficult issue.

Also significant since my blog post is that the Napo Family Court Committee has drawn up a substantial and detailed document entitled "Guidance on Professional Standards and Family Court Practice". It covers a multitude of sins, and is broadly a constructive document, intended for use by beleaguered CAFCASS Officers "in order to better assert themselves when instructed to work unprofessionally". (Ahem)

Unfortunately, whilst it makes clear that CAFCASS Officers must be mindful of the rules on disclosure of information in the draft I was shown failed in my view to fully set out those rules in one area, and defined the privacy rules too narrowly in another (McKenzie friends and supporters not allowed into meetings with CAFCASS) and in another incompletely. I pointed out at least three pretty glaring errors in the document, including two incorrect summaries of absolutely key caselaw (Re L and Payne v Payne). Whilst this document has (thankfully) yet to be circulated to membership - the consequences of it being circulated to CAFCASS Officers with inaccurate information would potentially have been quite serious, both in terms of bruising cross examination and in terms of appropriate working practice. Again - on legal issues they need to seek legal advice or proofing. Especially in an area where they and others have got it wrong before.

So. The verdict?

Napo messed up. They aren't the first and they won't be the last.

I suspect the consequences of this blunder will take some time to permeate through.

For my part I am quite convinced that they are horrified about this whole mess and are doing their genuine best to sort it out and make sure things work better in future. I suspect they will be a lot more cautious in future, but I think they have a lot more thinking to do, and a few more procedures to write before they are done. In my opinion (knowing a fair bit about how representative bodies tend to work but little about this particular one) Napo need to look at their internal structures and procedures and consider co-opting both legal and PR expertise to their family court committee.

Oh, and when running a national campaign they need to actively listen to public reaction to those campaigns - monitoring their inboxes would be a good start.

 

NOTE : A draft of this blog post was sent to the three representatives of Napo prior to publication and minor factual errors were corrected, along with minor stylistic issues only.

Dads-to-be excluded from ultrasound scans

Rob Williams writes in the Guardian about the practice at Basildon hospital of excluding fathers to be from ultrasound scans. He suspect[s] that the policy to exclude men from the scanning room is rooted in a belief that men are not important to the process of bringing a baby into the world. Whilst I sympathise and think this policy creates more issues than it resolves, I suspect it's not that simple.

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The article publishes in full correspondence in response to a complaint about this policy, along with answers to a Freedom of Information Act request. Rob Williams complains that the Trust's claim that the policy is 'to protect technicians from violence' is not borne out when one looks at the statistics - only one incident of violence towards a sonographer in the two year period covered. But in fact, this is not what correspondence from the Trust says. It says that in part the policy results from very real concerns about 'the reactions of partners when they are in the scanning room'. It seems fairly clear to me that what is likely to be behind this is not a concern about direct aggression towards staff, but the risk of an adverse reaction towards the patient herself, particularly at dating scans where a woman may be caught out in a lie. We know that domestic violence often emerges or worsens when women fall pregnant and I suspect that this policy relates to the risk to women patients, and of course the risk that staff may be caught in the crossfire. And a woman in an abusive or controlling relationship may not have been able to prevent her partner from attending the appointment, or may be unable to voice her preference to attend the scan alone.

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That said, I don't think its a policy I support. I do think that it minimises the role of fathers and operates on a presumption that they will be disruptive or unsupportive. If we can manage to involve fathers routinely in the birthing process we should be able to make arrangements for dating scans to be carried out in a way which doesn't exclude dads, whilst safeguarding vulnerable women. If this means that staff need to be watchful, sensitive and adaptable so be it. It shouldn't result in women who wish to have their supportive partner with them being denied that support. Having experienced both the awful moment when the sonographer confirms that the baby has no heartbeat, and having gone through subsequent scans with my heart in my throat clutching on to my husbands hand for dear life, I cannot see that this policy is right. And allowing for the partner to be brought in after the initial scan does not solve this problem.

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We should not see all men as potential perpetrators. Violence against women is bound up with gender stereotypes and such a policy runs the risk of perpetuating them.
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Equally, the campaign which sought the information from the Trust seems to have been so focussed on rights and equality that it had a bit of a blind spot as to the very real issue that the Trust was quite legitimately trying to address.

Musings on new fangled equality

Just a thought. I'm not trying to be controversial or nuffing. But it did occur to me today that whilst the clamour for a presumption of equal parenting is all well and good (I agree its a solution that should be given serious consideration in most cases, but not that this should be elevated to a presumption) its something which is really completely novel as far as the history of the family is concerned. And I began to think about what equality really means in the context of parenting.

I'm all for equality of opportunity as far as parenting is concerned. It doesn't matter to me whether its Mr Mom or Lady Cab Driver. Or a shared arrangement that defies the traditional homemaker / breadwinner paradigm.

However, whilst I'm no historian, I can't think of any time in history or any culture where the role of primary carer is or has been generally  split equally between both parents. Aside from cultural norms and historical societal organisation into very gendered roles, there remain all sorts of practical and financial reasons why one parent most often carries out the bulk of the care of the children. It's still most often the mother who performs this role, but there is no reason why it needs to be her as opposed to him.

I pause here to observe that even for topsy turvy families like mine where there is a gender role reversal from the traditional female carer : male breadwinner, it is quite often very hard for both of us to shed our guilt for not providing (him) or not being there to kiss it better (me): gendered expectations about our roles as parents are deeply ingrained in us all whatever our philosophy or intellectual belief. I go out to work: I feel like a bad mother, even though I know better. But there is no reason why the carer has to be the mother. And courts must ensure no prejudice in that respect.

But I want to draw out a distinction between avoiding discrimination in our attitudes to who should provide primary care and the quite distinct proposal that the primary care should be split equally between the two parents on separation. When families are together shared care and equal divisions of time are far from the norm, and I'm not sure why they should be the norm when they aren't together.

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Fathers seek equality in matters of family justice. Equality to me means that each parent should have equal treatment from the courts, equal status as a parent, equal importance in the life of a child. It's not a mathematical equation and it can't be expressed in binary. What is legitimate to ask for is that the court, when faced with applications for residence from two parents, does not make its decision based on prejudice or gender stereotype. What is not legitimate is to prioritise a parent's desire for recognition or affirmation over what is right for the child in any given case.

The complaint is often made that the overwhelming majority of residence orders are made to mothers, ergo discrimination. Well I don't agree that this equals discrimination, because I don't think you can tease out from that that brute fact that, in spite of big changes in society over recent decades, the way in which most families still continue to organise themselves is with mum as main carer, and that when most disputes come to court it is from the starting point that the children are used to being cared for by her. Which is not to say there isn't discrimination in individual cases, but only that the statistics reflect the general trends in society that persist.

In private law disputes the title and status of 'primary carer' can become a much sought after prize, the symbol of victory in the battle for equality. The goal of 50% of a child's time I think is often a symptom of competitiveness between parents, determined on securing a victory in their own conflict. Parents who count up how many nights a year they have and demand an extra 3 nights per annum to balance it out have really lost the wood for the trees - their kids aren't counting. They are wondering why daddy / mummy is so angry all the time. The 50:50 approach fundamentally misunderstands the way in which our children see us as important figures in their lives. A breadwinner is no less of a parent than a homemaker / carer. My dad worked hard, he didn't get home to put us to bed often and the patterns and nature of my relationship with him as a child was very different from that I had with my mother. But my parents are equally important to me, regardless of who bandaged my knee or made my sandwiches or who stumped up the pocket money. It is only adults who need to quantify their relationships in hours. Insistence on shared residence can be to impose the judgment of Solomon on children, if not tearing them limb from limb forcing them to be constantly moving from pillar to post in order to share themselves equally between their parents.

Shared parenting works well for some. Equal splits of time also for some. There are any number of combinations or arrangements. But, when there are two homes the practical and geographical problems can often make shared care stressful or impractical. For the bulk of families, whether separated or together the only practical solution is to take different but equal roles. Children understand that in their own way and think no less of us for it. Sometimes I think that the more parents try to demonstrate their equality through carving up the weeks into 50:50 shares, the more they force children to choose between them.

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I know that fathers rights / equality campaigners don't think that the welfare checklist / best interests test achieves a non-discriminatory result, but I think a presumption of shared care would subjugate the welfare of the child to the straitjacket of dogma. But what if instead we were to legislate to remove any perceived discrimination by identifying what is impermissible for the court to take into account: a codification of the principle of non-discrimination by, say, a provision that the court must not make decisions about the care or residence of a child on grounds of gender.

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These are just my Friday night musings and I've had half a glass of wine (baby related abstinence means even this results in mild squiffiness). But I do think there are more creative ways to think about how we promote equality for mums and dads and I think that the debate about this needs to be both more rigorous and more innovative.