Category Archives: public funding

What is the difference between a ‘QLR’ and a QLR?

It’s Friday. I’ve been staring at a screen all day and my eyes have gone funny from scrolling through spreadsheets. I need a change of scene before resuming the trawl. Or failing that a change of topic. Aha. I’ll tackle that QLR judgment.

I tell you now, I am perplexed by this one. I’ve been mulling it over in the back of my brain all week and its got me awl of a muddle.

In the back of my brain I have been thinking up amusing alternative meanings for ‘QLR’….imaginative unabbreviations if you will.

  • Quite Limited Role.
  • Question Lots. Really?
  • Questions Lack Relevance?
  • Questioning Like Rumpole
  • Questioning Lite. Representation?
  • Quite Literally Ridiculous…
  • QLR Law: Resources?
  • Quash Litigants’ Rights
  • Quell Litigant Rebellion
  • Quite Like Representation
  • Quixotic, Lost, Rare…
  • Questions Largely Rhetorical
  • Quizzical Looks Required
  • Quick, Let’s Run….
  • QLR Lost? Right….

Enough nonsense. To the case! Which is: K v P (Criminal Solicitor as Court-Appointed QLR) [2025] EWFC 321. (You can tell me later if my unabbreviations are apt/funny/tedious).

As the title of the case suggests, it involved a solicitor who had been appointed by the court as a QLR for a father accused of domestic abuse, and who was ALSO appointed by that father as his representative in criminal proceedings about domestic abuse (apparently involving the same parties but not necessarily relating to the same specific matters running in the Family Court). We aren’t told how it came to pass that a QLR was appointed or which appointment came first, but in my experience courts usually operate a list, and work through the list in order until a QLR says ‘yes’ they are available.

The mother, who complained of domestic abuse, said that this was inappropriate and unfair. It gave rise to a conflict of interest and would diminish her ability to give her best evidence. Part of her complaint (quite a big part on my reading) was that this solicitor would have unfair access to the family court papers and knowledge of the criminal proceedings.

If I mentally put myself in her shoes I can understand where she was coming from. I can understand why the argument was advanced.

But.

Just because somebody feels that something is unfair doesn’t necessarily mean it is. And fairness is a two way street. And here the father didn’t agree it was unfair. And so it came to pass that the matter was passed to the President of the Family Division, to decide what the right answer was in this particualr case, and indeed in cases like this. Cases involving QLRs are, frankly, new and uncomfortable territory for all of us (lawyers and judges alike), so anything that helps us navigate them is welcome.

The President wasn’t dealing with this as an appeal – he was sitting in the Family Court as a first instance judge. I imagine that this is because the original judge thought it was a good idea to let the ‘big cheese’ work this out, for our general edification. This is, I think, the second time the President has been invited to sit in the Family Court to sort out a QLR related conundrum (the first being the case which dealt with what to do if you can’t find a QLR (at a time when QLRs were really on the red list). TLDR answer: judge may just have to crack on and ask the questions herself, even though the entire reason Parliament legislated for QLRs was because this was unsatisfactory). Perhaps as a mark of the trickiness of topic, the big Cheese permitted the intervention (at whose suggestion I’m not sure) of something called the AQLR (Association of QLRs) and the rather better known ALC (Association of Lawyers for Children), and Right to Equality. The submissions of the former two organisations are summarised briefly, and appear to form the backbone of the decision.

Having heard argument, the President concluded that:

  • The essence of a court-appointed QLR is that they will be independent of the prohibited party, and not acting more broadly ‘for’ that party. each case will fall to be evaluated on its own facts,
  • Where a QLR is also a criminal representative the court will give careful consideration to the question of whether the court appointment should be discharged. It will consider whether the dual role:
    • compromises the appearance or actuality of QLR independence;
    • undermines the protective purpose of the QLR scheme;
    • creates a real or perceived conflict of interest; or
    • introduces a material imbalance of disclosure or cross-jurisdictional knowledge.
    • In any given case other factors may also be in play.
  • It is difficult to contemplate many cases where it will be proportionate to continue a lawyer’s appointment by the court as QLR where that lawyer also acts directly for the prohibited party in related criminal proceedings.
  • For the court to continue such an appointment will normally cut right across the aim of the provisions in Part 4B and PD 3AB, which is to enhance the quality of the evidence of a vulnerable witness and to reduce the potential for additional distress.

The upshot of the decision in this case was that the QLR was discharged, but as you will see from above that will not inevitably be so in other cases of dual instruction.

The President said that there should not be a blanket prohibition upon any court-appointed QLR who is also instructed as a solicitor or barrister for the same party in parallel criminal proceedings. Bearing in mind that it is clearly permissible for a party to instruct their criminal defence lawyer to be either their directly appointed QLR or lawyer in the Family court, the court thought that this would be would be disproportionate and unnecessary.

So here, unless the father appoints his own lawyer in the usual way the court will now appoint a different QLR. In a curious postscript, the President records that ‘At the conclusion of the oral hearing, following the decision to discharge his appointment as QLR, Mr Fidler informed the court that, depending on the father’s instructions, he may henceforward go on record as the father’s solicitor in the ongoing Family proceedings’. (Didn’t see that one coming? Me either).

Intermission….That really is all you need if you are just looking for a summary of the case. If you want my ruminations, read on…

Mr Fidler, by the way, is the QLR. I should have introduced him. The QLR to whom the court specifically said no criticism attached (nothing that I say in this post should be interpreted as criticism of Mr Fidler, by the way. It isn’t). But who is recorded as ‘assist[ing] the court by making submissions on behalf of the father.’ In a case where the court has confirmed that ‘The essence of a court-appointed QLR is that they will be independent of the prohibited party, and not acting more broadly ‘for’ that party.’ Confused? To be sure, it is possible to act pro bono as a full fat legal representative as an adjunct to being a QLR, but in a hearing about roles, boundaries and conflict this is…notable.

It’s not the only confusing thing. The use of ‘QLR’ (as an acronym for qualified legal representative) is a term which, with reference to the QLR provisions (lazy shorthand, all the provisions are in the judgment if you care) has a specific statutory meaning. However ‘qualified legal representative’ also means, as a matter of normal use of words, any qualified legal representative – a solicitor or barrister or ILEX, whether appointed by court or party (or nobody). So really, we ought to distinguish between a qlr (no capitals, just a lawyer), and a QLR (capitals, a specific lawyer with a specific and limited statutory role). Every QLR must also be a qlr, but not every qlr is a QLR. Got it?

And it is not the role of a QLR qlr to make representations on behalf of a party. Was Mr Fidler singing for his own supper, was he acting on behalf of the court, or was he acting as advocate ‘on behalf of’ the father, who had not appointed him? Perhaps he did this pro bono and independently of his (limited) instruction as QLR, since I don’t think he can act in this capacity under his instruction by the court, but it is an ethically complex position, isn’t it? It is a tension inherent in the scheme, and which causes real world problems of not insignificant frequency, and so although I’m sure it was done with the best of intentions, it is somewhat confusing to see those boundaries blurred in a decision which also emphasises the importance of not blurring those boundaries.

Anyway, whilst the court was happy for him to do whatever he was doing at the hearing before the President, pursuant to whatever duty he felt he was discharging, ultimately the court wasn’t happy for him to carry on being an actual QLR in the strict sense of the role as per the MFPA 1984 and the statutory guidance. The decision isn’t based upon a conflict of interests as I read it, though that was argued. It was primarily based upon the complainant’s perception of unfair advantage were the qlr to continue as a QLR, and the potential adverse impact upon her evidence.

But here is what is perplexing me the mostest.

The court was evidently content (rightly) to contemplate Mr Fidler acting for the father in the family proceedings if the father instructed him ‘properly’ as a qlr (party appointed) rather than a QLR (court appointed) – as reaffirmed in the postscript.

If that happens (as it sounds like it might) the father’s legal representative will have exactly the same rights to access and use information across jurisdiction as he would as a qlr (criminal) / QLR (family) hybrid. See FPR 12.73(1) :

1) For the purposes of the law relating to contempt of court, information relating to proceedings held in private (whether or not contained in a document filed with the court) may be communicated

(a) where the communication is to–

(ii) the legal representative of a party;

(iii) a professional legal adviser;

Mr Fidler was entitled to see all the Family Court material whether or not appointed as a qlr (family) or a QLR (family) or neither, because he was appointed by the father as a legal representative / professional legal adviser. He still is.

Mr Fidler was entitled to see all the Criminal material because he was appointed by the father as a legal representative / professional legal adviser. He still is.

The position will be the same for ANY legal representative in the same position.

The complainant / mother was a witness in the criminal proceedings and not a party. Her rights to knowledge of the criminal proceedings are not affected at all by the father/ defendant’s choice of lawyer or the appointment of a QLR.

There is no inequality arising from the fact that the QLR is also the criminal lawyer.

It is true that if the criminal defence is legally aided there will be no funding to read the family papers unless and until the crown make a successful application for disclosure into those proceedings pursuant to their duties of disclosure (assuming that any of the material was relevant). And it is true that the family court information could not be used in those proceedings without permission (because it would amount to a contempt). But nothing did or does stop him knowing about the information in both sets of proceedings as long as he held one appointment as the father’s legal adviser.

In fact, it is not infrequent to have a situation where different departments within one legal aid firm represent the same party across criminal and family jurisdictions and where sharing of information between the two teams is entirely commonplace and permissible? Nobody complains about that.

None of the cast appear to have drawn the court’s attention to FPR 12.73(1)(a)(ii) and (iii). It certainly isn’t mentioned. I think it makes a big hole in the point about ‘material imbalance of disclosure or cross-jurisdictional knowledge’, because there is none. Or none that is at all referable to the QLR appointment.

How can it be right then, that a complainant can say ‘oh this is unfair he can see all that information’ and that can form the basis (part of the basis) for termination of his appointment? When a moment’s advice to that complainant to explain that: actually, it doesn’t make any difference, he’s entitled to see it anyway – would cure any reasonable perception of conflict or unfair advantage?

As for the conflict of interest point. It plainly would not be a conflict of interest for Mr Fidler to act in both family and criminal proceedings if instructed by the father in both and there is no suggestion of a conflict in the usual sense (previously acted for opposing party, for instance). The argument about conflict seems to have been largely based upon the (fallacy about) advantage achieved by knowledge of both sets of proceedings, and partly upon the (important) fact that the appointment is made by the court, that the duty is owed to the court rather than the ‘client’ (not-client), and that this is all wrapped up with ‘independence’. That, I acknowledge, is an ethical complexity, and it is one that is made more complex when there is a concurrent duty to the court AND to the criminal client – but it is an ethical complexity which is inherent in the QLR scheme.

One only has to read the statutory guidance to see the linguistic difficulty of describing the role without reference to terms like ‘client’ and ‘instructions’. The prohibited party is not a client and the QLR isn’t to take instructions, But they do have to speak to them in order to find out what their case is, which is definitely NOT to be confused with taking instructions. Got that? And of course, when it’s convenient the court is – as here – happy to allow the QLR to pretend they are a client instructed qlr. Tales of judges encouraging – or expecting – lawyers to behave exactly as if they were instructed by the not-client (help with negotiations, drafting orders, advice) are rife, notwithstanding the paucity of fee for QLRs. Ethical conflict is not a rarity in this domain.

And of course all lawyers, whether qlr or QLR flavour, are independent. And all owe a duty to the court even if they are instructed by a party. That is why, for instance, a party-appointed lawyer is no more entitled to ask inappropriate questions of a (vulnerable) witness than a QLR and a vulnerable witness is equally well protected on that score.

The President says this about conflict:

Whilst no strict issues of conflict of interest apply as between Mr Fidler and the mother, there are issues, or potential issues relating to the different disclosure regimes as between the family process and the criminal process. In short, Mr Fidler will be party to all of the disclosed material related to the criminal charges, whereas the mother and her lawyers do not have sight of that material, none of which has been disclosed into the Family proceedings [my emphasis]

Here, the conflict is all about having special access to the criminal process. Respectfully, I think this can’t be right, for all the reasons I’ve set out above (plus, if there really was some relevance in the criminal papers then an application for disclosure of them could and should have been made). The President doesn’t really explore conflict in any broader sense.

BUT it is arguable, I think, that a potential conflict of interest arises between such a lawyer’s duty to a criminal client (including duties of confidentiality) and one’s duty to the court in other proceedings (where no such duty is owed). That doesn’t seem to have been addressed, but I think that is what I would be worrying about if I were in Mr Fidler’s shoes. I would be thinking about that upon appointment (and I think I would not agree to appointment, but every lawyer must make their own judgment). If I am right though, it is not at all case specific, and that sort of conflict arises in all cases of dual QLR / qlr instruction because there are two different clients. If the QLR has not identified the conflict and withdrawn, wouldn’t the mere fact of the co-occurrence of the two roles and two sets of potentially competing duties be sufficient in and of itself to strike them out? Yet in this judgment, the court suggests that the discharge of a QLR is fact specific and multifactorial, and specifically discards the idea of a blanket prohibition, which leaves open the possibility of this cropping up again. Or of enthusiastic complainant advocates trying to expand its reach and effect.

It’s easy to say that ‘well, it was just easier to get a fresh QLR’, stop over thinking it – and wave it away (and actually at paragraph 17v) says in terms that another QLR will be found’). But in my experience it isn’t easy to ‘just get a fresh QLR’. They are like hens’ teeth. And all that seems to have happened here is that a father who was getting a free (but constrained) service in that a lawyer would ask questions of the complainant that went to the ‘essence of his case’, is now either going to have to pay for the same lawyer to do the full service job of representing him fully (questions of all witnesses, oral submissions, drafting etc) or he is at risk of being left with no QLR or more delay. That seems…..odd. The President summarises the purpose of the QLR scheme as being ‘to enhance the quality of the evidence of a vulnerable witness and to reduce the potential for additional distress’, which must be right. But isn’t it also aiming to ensure a level playing field, fairness in order to ensure an Article 6 compliant trial for all parties (whose culpability has yet to be determined)? I know that it is precisely this consideration that led the court to step away from the idea of a blanket ban, but…

Perhaps, if the father is able to afford to appoint Mr Fidler ‘properly’ all along, we might not have a huge amount of sympathy or concern for him, and probably no harm done. But not everybody will be able to afford to pay for representation. And this isn’t just about this father and this lawyer. I can’t imagine it will happen often, but if in another case the court happens to appoint the same lawyer acting for a legally aided criminal defendant as a family QLR, that litigant might well think that this happy coincidence at least allows a helpful continuity and breadth of understanding. It might be seen as a marginal advantage, and even if it is a happy coincidence, why should it be taken away from this litigant where it couldn’t be from a wealthy or legally aided party?

So, when you really start to think about this decision and what it actually means, it inadvertently reveals the elephantine bigger problem. A QLR is supposed to be an Article 6 fair trial compliant alternative where a prohibited party (unlike the criminal jurisdiction this is usually but not always someone who can’t afford a lawyer) wishes to challenge the evidence of the other party (rather than someone with a gleeful lust for asking horrible questions of their ex for fun – though there are a few of those, too). It is meant to ensure that the needs of both parties (who may both be vulnerable) are met, and so that best evidence is achieved and sound decisions reached. The provision that is made for the prohibited person is not only of a different character than a ‘normal’ lawyer appointment in terms of instruction and scope (instructed by court, questions of prohibited party only, not permitted to ask questions of their choice (or even to request to ask those questions, no speeches, no advice), but it now also appears to be the case that a complainant can raise objection to the identity of a QLR on the basis of distress or perceived bias – even where that perception might be ill founded. Of course, when we are dealing with arrangements for vulnerable witnesses subjective experience and perception are legitimate considerations – but only to a degree. Such an imposition would never be permissible for a qlr appointed by the party, on grounds that (with very limited exceptions) a party has a right to choice of representation. The judgment explicitly acknowledges that. The complainant here won’t be able to say (if he does go on record and appear) that Mr Fidler should be discharged. He will, if appointed ‘properly’ be entitled to ask her questions even if she thinks it is jolly unfair that he knows all about the criminal proceedings. Why should that complaint be permissible just because the other party hasn’t the means to pay for a lawyer themselves?

So I don’t think I really like the idea of a right to object, which is what this judgment effectively creates. I think its burdensome on the complainant, will feel (subjectively if not objectively) very unfair to the prohibited party, and will burn resource. I think it might inadvertently invite further *cough* exploration in other cases. Whereas, if the court as ‘client’ took the conflict point and discharged as soon as the dual instruction was known in all cases (or better still if the rules simply forbade such instruction), such disputes would not need to be dealt with. If the President is right that there are enough QLRs to go around this should not be a problem, and it would avoid delay, stress and wasted resource – without the complainant having the additional stress of applications like these, and without the risk of complainants getting the idea that they can pick and choose who they are asked questions by, or that they can further restrict the other party’s ability to defend themselves by virtue of the fact that they are the subject of a QLR direction (which I think is unhelpful for everyone involved).

Anyway, for me at least, this decision is quite a poignant reminder of the substantive difference between the entitlements of a party with funds as compared to an impecunious accused (the prohibited party is usually the accused). A QLR is not ‘just like having your own lawyer’. A QLR is not ‘your lawyer’ at all (except of course, where they are).

Joining the dots…

Feature Pic courtesy of by Salim Virji on flickr - thanks!

Last week the Public Accounts Committee published a damning report telling us that family justice was failing families, that delay was an endemic problem, and that the system was fragmented, rubbish with data, lacked transparency and accountability, and as a result was inefficient. No surprises there. None of it is new. People have been shouting it into the void for years.

The report drew particular attention to a shortage of District Judges and social workers, and to the failure to get on with implementing Pathfinder nationally.

Whilst there isn’t much to quibble about in the conclusions reached, notably missing is any focus on the resource issues that are a key part of the context to those delays and failures. If you don’t fund a thing properly it ain’t gonna work properly.

The Family Law Bar Association provided evidence to the Committee which has been published as part of the report here.  Whilst welcoming the points and recommendations that were made, they also say

It is unfortunate that some of the points we made in our written evidence (such as lack of investment in the FJS / legal aid, lack of accountability for family justice, reduction in sitting days and the absence of specialist knowledge and understanding in the MOJ / DFE) were not highlighted in the report or recommendations.

Indeed.

As it happens, this week Nuffield have produced a striking graph showing that now 80% of private law cases involve litigants in person. Do we think those statistics might be one part of that important context? 80% of tens of thousands of cases (the majority of which will involve some sort of allegations of domestic abuse) require consideration of fact finding hearings, fact finding hearings, special measures, QLRs – and in almost half of those cases (39%) there are NO lawyers at all to help the judge (meaning two QLRs and many more false starts and ineffective hearings).

There aren’t enough judges (not just DJs – all tiers), and aren’t enough sitting days for fact finding hearings – hell, sometimes there aren’t enough screens in the court building to implement special measures properly. And there most certainly still are not enough QLRs. And as we all know, there aren’t enough lawyers (thank you LASPO 2012). So yes, that body of cases takes up time and resource that we simply don’t have. And yes, many of those families are failed. That also has a knock on effect on care proceedings, since both types of case are sharing the same ever diminishing resources pool.

Add to that the fact that for almost six months family barristers and solicitors have been expected to largely work without payment due to the hack on the LAA’s systems (a hack which no doubt is at least partly down to under-resourcing). Fortunately there is now light at the end of the tunnel as far as the LAA systems coming back online is concerned, but the ramifications of the temporary contingency scheme and the additional cashflow pressures on individual lawyers, firms and chambers, will have a long tail indeed. And even once payments resume they will be at a rate fixed many many moons ago (family legal aid has not had even an inflationary rise for the entirety of my career), and which in some areas is woefully below a reasonable fee for the amount of work done and the level of responsibility and vicarious trauma that lawyers are expected to carry.

But anyway, we have a report from a committee, so I’m sure that it will all be sorted out in a few weeks and family justice will be the land of milk and honey…. won’t it?

Of course I am cynical. Many of the points made in this report were made by David Norgrove in 2011. And yet still the dots are not joined and we have a disjointed FJS with too much delay. So I won’t be holding my breath.

I very much hope that this does not simply produce yet more muscular ‘robust’ case management. Piling pressure on the lawyers to make cases smaller is not the answer to this complex problem, and in fact is likely to exacerbate the difficulties. The answer lies in proper resourcing and in respect for the skills and efforts of all the professionals doing their best in sub-optimal circumstances.

“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.