Category Archives: transparency

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

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

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

 

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

 

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

 

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

 

The proposed change

 

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

 

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

 

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

 

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

 

What led to the change

 

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

 

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

 

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

 

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

 

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

 

What the amendment says

 

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

 

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

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

“2A Prisoners: suspension of parental responsibility

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

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

 

What does this mean in layperson’s terms?

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Legal aid

 

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

 

Other related amendments

 

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

* error corrected

Conclusion

 

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

 

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

 

 

Important note for non-legal readers:

 

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

 

Update 10 May 2024

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

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

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

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

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

Two more books, still working on that novel…

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

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

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

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

 

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

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

 

No Frills Justice – Part 2

This is part 2 of a post about my observations at Central London Family Court in September 2023.

In part 1 I described the first hearing I observed, Here I tell you about the second case I observed and make some general comments about my experience as a legal blogger.

So, back to the third floor of the CFC. At the end of part 1 I left you at the door of court as everyone in the first case had all dispersed…

 

Shortly after, the other 2pm case in the list is called on. The clerk has enthusiastically shooed me into court with one hand whilst shooing the parties away with the other, so I exchange a polite greeting with the judge and sit for a minute or so in awkward silence in court before the parties and their lawyers come in. This case is showing on the list as an interim care order removal hearing, but it takes me a few minutes to work out who is who and why the matter is at court.

 

I piece together that the case is about a child, Brianna*, approaching secondary school age who has been living with her grandmother under a special guardianship order for most of her childhood. Her mother is missing in action, thought to be street homeless, but her father is present at court with his mum, the special guardian grandmother. He has recently had a positive drug test for crack and other drugs, but is said to be seeking support. He lives with his mum and daughter and appears to have been quite involved. The last year has been a difficult year for the family because the grandmother and head of the household has developed a condition which affects her memory and ability to live independently. She now has a substantial care package to support the wider family in looking after her. She has come to court today with her daughter, Brianna’s aunt. The aunt has been given permission to sit in court beside her mum, and at times is invited to speak on her mother’s behalf, and to express her own views as a part of the family. Because the hearing has been arranged at short notice the grandmother doesn’t have a lawyer, though arrangements are put in train for that to be sorted before the next hearing. The aunt tells the judge that Brianna comes to stay with her on weekends, and she sees her daily, but her job means she is unable to look after her full time. Asked if her mother is able to speak on her own behalf, she says ‘maybe. She has moments’. The grandmother manages a few words: ‘Don’t like it but yeah Its best thing for [Brianna]. She was upset but not my fault I got this condition.’

 

The situation is desperately sad. The family have done their best to pull together as the situation has unfolded, but by the time they reach court it appears they all accept that it isn’t sustainable, and Brianna will need to move. On the horizon it seems, is a time when the grandmother will be unable to manage in her own home and will need to move, presumably to supported living.

 

The silver lining for Brianna is that she has some older siblings who live in the South West and who are cared for by a family friend. Brianna knows them and spends time with them in holidays and they can look after her. But it means a school move, and Brianna is anxious about that. The local authority want to share parental responsibility, which makes sense because it sounds as if there is some doubt that the grandmother can exercise her parental responsibility at all times.

 

The judge deals first with making sure that Brianna’s mother knows what is happening. He makes an order for the Department for Work and Pensions to provide any address they hold for the mother, although everyone is doubtful this will be a very effective way of finding the mother if she really is street homeless.

 

Next, he asks the local authority lawyer to summarise the position, as he knows the family won’t have had time to read the case summary. The barrister explains a bit about the background as described earlier, and is at pains to say that the grandmother has done a very good job until she fell ill, and that it recognises that the need for an order is through no fault of the grandmother. He explains that social services had been prepared to carry on with a plan of family and professional support until arrangements were able to be made for Brianna’s siblings and their carer to move to the London area in a few months time, but because of the working commitments of the father and his sister there were times when Brianna was alone with her grandmother, which were now felt not to be safe. They were seeking an order to be able to move Brianna to live with her siblings straight away, but on the basis that they would come back to the London area when able.

 

The judge was invited to grant the father parental responsibility given how involved he had been with Brianna, and to join him formally as a party. The judge made both orders.

 

The local authority acknowledged that, due to her difficulties, most discussions had been held with the adults in the family as a group rather than with the grandmother in her own right. The barrister suggested that her capacity to instruct a lawyer and to participate in the court case should be assessed before she is expected to put anything in writing formally.

 

The father’s lawyer indicated that whilst she formally acted on behalf of the father, she was instructed to put forward a view on behalf of the family as a whole too. Through her, the family acknowledged the concerns and that the needs of Brianna could not be fully met in the current situation. It was acknowledged that the grandmother’s likely move would place the father’s own accommodation at risk. He accepted the drug test results, though made clear that he did not use around the child. Understandably, he did not consent to the move, but he didn’t oppose it either. He was worried about the unresolved issues of schooling.

 

Although the outcome seemed pretty inevitable given what I’d heard of the issues and the family’s position, the judge was careful to make sure that the interim arrangements for education, contact and other matters were as clear as could be, and wanted to explore some confusion over the likely school and timing of a further move. He also made sure to satisfy himself that although there would be some disruption and uncertainty Brianna was not moving to complete strangers, but to family and people she viewed as family, and whose home she was familiar with.

 

The judge delivered a short judgment setting out the facts and the law. He made arrangements for a next hearing, with the new carer to be involved, and set the wheels in motion for assessment of her. To my surprise the LA said they only needed six weeks to do that.

 

The judge added a post script to the grandmother, acknowledging that she had been unable to fully participate and directing that at the next hearing the judge would specifically consider how she could be supported to be part of the proceedings.

 

Again, sorting out arrangements for me to report was pretty straightforward – the father was a little surprised at the suggestion I might report, because he had been involved in proceedings before where this did not happen. In this case the judge expressed some anxiety about a risk of identification of the family if I named the local authority, and I was happy to agree not to name them. Again, I don’t think the identity of the local authority matters to this pen picture of an ordinary account of an ordinary afternoon in Central London Family Court.

 

Legal blogging experience

 

On this occasion I attended without any real notice, but I did let the usher know just before lunch that I was planning to attend 2 hearings, and provided my paperwork to him in readiness (he was so keen to take the papers I was thrusting at him that he was almost gone before I had a chance to explain I was a legal blogger – I think he thought I was a solicitor handing in a case summary). We exchanged email addresses and within a few minutes I was told that the judge had ok’d my attendance. I introduced myself to the lawyers for both local authorities once signed in, in the expectation that they would cascade that information down to the other advocates who could take instructions (it can be intrusive to go knocking on the door of lawyers involved in discussions with family members, as well as hard to find all the right people!) but in fact this didn’t happen and so I decided to let some of the other lawyers know I was present when they were signing in. One said to me ‘what’s a legal blogger? Are you a lawyer?’, so I gave her the relevant rule to look at. There was no hostility or real objection to my attendance or reporting, and the judge handled my attendance smoothly and with minimal fuss. I’m confident my attendance didn’t detract from the parties’ ability to engage or the judge’s ability to deal with the cases.

 

I was able to obtain a copy of the relevant parts of the order confirming my permission to report without difficulty, although I did subsequently note that one order suggests the judge had granted permission for me to attend, which is not strictly correct. I was entitled to attend and nobody objected.

 

*The child’s name has been changed