Welcome to the Roundup, where we correct, clarify and comment on media reports of family law, explain and comment on published family court judgments, and highlight other transparency news.
MEDIA COVERAGE OF FAMILY LAW, TRANSPARENCY etc
The Guardian kicked off the silly season with a piece on How to make a relationship work – and when to call it quits: 10 lessons in love from divorce lawyers (3 August 2024), which took up two whole pages in the print edition that could have comprised actual advice. Oh well, never mind. It provided an opportunity for a number of family law solicitors to get a fluffy quote into the paper and a namecheck for their firms. The advice itself – ‘think carefully before you move in together’, ‘remember that difficult moments are normal’, and ‘pay attention to your sex life’ – evinced a finely honed cracker barrel sagacity. Maybe the barrel was full of fortune cookies.
Rather more mysteriously, the BBC reported that a Family court judge rules on twins’ existence (1 August 2024). Following their divorce, a husband claimed his wife had given birth to two children, and sought contact with them; but the wife denied their very existence. Describing it as a ‘perplexing case’, the judge (Arbuthnot J) said that there was ‘some evidence’ that at least one child had been born. The report, by Sanchia Berg, included a link to the judgment, AA v ZZ [2024] EWHC 2008 (Fam) and a quote from ‘leading family barrister Lucy Reed KC [who] said the case was a reminder it can be “extremely challenging” for the family court to sift reality from fiction.
The Independent was among many news outlets which covered the story of Lauryn Goodman slammed by judge following family court showdown with Kyle Walker over childcare demands (30 July 2024). ‘Walker, 34, who is married with four children, was booted out of his £3.5million Cheshire mansion by his wife after he fathered a daughter with Ms Goodman four years after they had a son together.’ Ms Goodman, described as an influencer, made lavish claims for maintenance for the new child fathered by the philandering footballer. Her claims were considered excessive by Judge Hess, including as they did a claim for astroturf to replace an unsafe patio, on the grounds that the baby girl, having kicked a football, might one day play for the Lionesses; and for air conditioning and various other work to upgrade her house. Refusing her more extravagant claims, the judge also decided to lift reporting restrictions and publish the judgment without anonymising the parties, given the extensive information already available online: see Lauryn Goodman v Kyle Andrew Walker [2024] EWFC 212 (B). The case is the subject of a guest post on our blog by Anna Yarde: Air Conditioning, Astroturf, and Transparency Orders.
The Independent also ran this disappointing story – ‘ “It’s not like you were beaten”: The horrifying misogyny vulnerable women face from the judge’s bench’ (16 August 2024). Disappointing that these experiences of women being retraumatised by the family courts are still happening but also disappointing that the reporter, Athena Stavrou, maintains that family court cases are closed to the public by ‘a shroud of secrecy’, although journalists have been entitled to go into the family courts since 2009 and she could be reporting first-hand under the Reporting Pilot as well as relying on second hand information. However, we would be the first to acknowledge that the pilot does not make such reporting easy and court based reporting continues to be resource intensive.
The Scotsman had an explainer on Why the Southport stabbing suspect hasn’t been named and how to spot misinformation (31 July 2024). This related to the fatal stabbing of three girls in a frenzied attack at a Taylor Swift themed dance class in Southport, Lancashire, by a 17-year-old male suspect whose identity and motives were soon afterwards the subject of speculation and misinformation on social media, prompting violent anti-immigrant and Islamophobic protests and riots which continued for some days. The article explained the legal reasons why an under-age arrestee could not be named, and urged readers to treat comments on social media with extreme caution.
The following day the suspect, having been charged with three counts of murder and ten of attempted murder in relation to the incident, as well as possession of a curved kitchen knife, was named by the Recorder of Liverpool, Judge Andrew Menary KC, sitting in Liverpool Crown Court, in a deliberate attempt to prevent further speculation. As reported in The Guardian, BBC and elsewhere, Axel Muganwa Rudakubana turned out to be the Cardiff-born son of Rwandan immigrants, now living in the Lancashire village of Banks. He was due to turn 18 in a few days anyway.
The CPS later issued an operational update (7 August 2024) on the rapid prosecution and successful conviction of defendants involved in the riots, explaining that ‘Our prosecutors are working round-the-clock to make sure lawbreakers can be brought before the courts without delay and face the consequences of their actions.’ (See below re televised sentencing remarks.)
The BBC reported that Family of missing woman face further court delays (4 August 2024) about the anguish of the family of Nellie Herriot, a 96-year-old believed to be suffering from dementia, who went missing in Brighton after last being seen getting off a bus in the Whitehawk area of the city on 23 April 2012. A police investigation proved inconclusive and in April this year the BBC reported that a claim by the family in 2020 for a declaration of her presumed death had been adjourned indefinitely, soon after being lodged, and four years later the Family Division appeared to have lost the paperwork and were asking the family to send it in again.
The News and Star had an exclusive about Teacher convicted of voyeurism advertises as Family Court helper (9 August 2024). The Cumberland newspaper reported that ‘A former Carlisle teacher convicted of voyeurism is advertising his services as a “McKenzie Friend,” offering paid-for support to people involved in family court cases’. The story serves as a warning to litigants in person to choose their court helper with care. The outfit concerned, Find a McKenzie Friend, might need to be more astute about selecting what they describe as ‘proven, rated and trusted McKenzie friends’.
The BBC reported on Girl to be placed for adoption after council wins appeal (9 August 2024) about a girl, referred to as C, whose parents have learning disabilities and were unable to look after her but wanted her to stay in foster care, as ordered by the Judge Robin Tolson KC; however, the Court of Appeal allowed an appeal by Slough Borough Council in favour of placing the girl for adoption, as she “needs a lifelong family where she can feel that she belongs”. Though the article does not provide a link, it is evidently based on the main judgment of Peter Jackson LJ, which is written in plain language for the parents’ benefit, and published as D-S (A Child: Adoption or Fostering) [2024] EWCA Civ 948.
The Star described how South Yorkshire dad tackles “harrowing” family court injustices in “raw and gripping” new book (11 August 2024). It said author Peter Kelk had ‘delved into the “harrowing” world of family courts in a new book which he says provides an “unflinching look” at the emotional tolls custody battles take on families’. His independently (ie self) published book, Injustice Unveiled: A Father’s Memoir, is available on Amazon for £15 in print or £5 as an e-book (free with Kindle Unlimited). (We hope he has taken care not to breach any reporting restrictions, in particular under s 12 of the Administration of Justice Act 1960.)
Local Government Lawyer had a story about Teenager with significant support needs left days from homelessness due to ‘unfathomable’ council failings: Ombudsman (22 August 2024). This concerned criticism by the Local Government and Social Care Ombudsman (LGSCO) of Devon County Council after it left a teenager with needs including autism and ADHD, who had been already forced to leave his children’s home placement, less than a week away from being made homeless because the council had not decided where he should live when he became 18. The Ombudsman, Amerdeep Somal, said: ‘This young man had been on the council’s radar for years, so it is unfathomable why it took so long to begin planning for how he would transition from children’s to adult services when he turned 18’
On the same day LGL also published another story about the Ombudsman criticising a local authority, this time the London Borough of Tower Hamlets, for contacting the alleged perpetrator of domestic abuse against a complainant as part of its inquiries into her homelessness. The Ombudsman said the council had breached the Homelessness Code of Guidance which sets clear expectations for councils dealing with allegations of domestic abuse and states explicitly that councils ‘should not approach the alleged perpetrator’.
The Church Times had a piece, State must protect, not cast aside (23 August 2024) about the Court of Appeal’s reversal of the decision of the Court of Protection in a case concerning the treatment of a 19-year-old woman suffering from a rare mitochondrial-depletion syndrome that was almost certain to kill her. Sudiksha Thirumalesh wanted to travel to Canada to pursue experimental treatment but her doctors had come to the conclusion that there was no cure, and wanted to treat her palliatively. In A NHS Trust v ST [2023] EWCOP 40 the Court of Protection concluded that the patient lacked capacity but the Court of Appeal (reported, following lifting of an anonymity order, as University Hospitals Birmingham NHS Foundation Trust v Thirumalesh [2024] EWCA Civ 896 found the judge (Roberts J) failed to give adequate reasons for reaching a conclusion which was contrary to the unanimous view of the experts that the patient did have capacity to make decisions as to her medical treatment. The article, by Nicholas Reed Langen, follows his earlier opinion piece in the Church Times, Dying woman denied last hope, commenting on Roberts J’s ruling.
The Guardian reported that Thousands of women abused as children may be unable to get justice due to legal anomaly (25 August 2024). Citing distressing examples, it explained that the Sexual Offences Act 1956 dictated that prosecution of the offence of sexual intercourse with a girl under 16, which applies when a girl aged 13 to 15 factually consented (even though as children they could not consent in law), ‘may not be commenced more than 12 months after the offence charged’. The law was changed by the Sexual Offences Act 2003 but it does not apply retrospectively. This means that if the alleged offence of sexual intercourse with a girl under 16 occurred prior to 1 May 2004 the limitation period still applies, thus preventing prosecution of historic sexual offences against women. The legislation did not apply to offences against boys, apparently. The anomaly is now the subject of an application to the European Court of Human Rights.
The Times (£) rounded off the silly season with a story that Kirstie Allsopp rages at council inquiry into son’s inter-railing (26 August 2024), as did a number of other outlets, including the BBC, who said Allsopp felt ‘sick’ after social services referral (25 August 2024). The well known TV presenter had been contacted by her local social services on a child protection issue relating to the fact that she had allowed her 15-year-old son (now 16) to go travelling around Europe with another teenager (already aged 16), without parental supervision. Allsopp had expressed parental pride on social media about her son’s trip but was surprised someone had reported it to social services, and even more so that they had in turn diligently followed it up (as required by law). Lucy Reed KC, having declined to participate in a TV interview about the matter, commented on the local authority’s legal duties (mainly under section 47 of the Children Act 1989) in her Pink Tape blog: Kirstie gets a telephone call from the social.
Just as we were about to publish this post, we read this important report in The Guardian (31 August 2024) by Hannah Summers, the implications of which we will be following up shortly – ‘Mother devastated after rapist ex partner given access to their daughter’.
BROADCAST & AUDIO COVERAGE
The BBC made extensive use of filmed sentencing remarks in its documentary series, Court on Camera (8 to 23 August 2024), covering the the sentencing of rioters in the recent unrest in Merseyside and elsewhere, following the killing of three young girls in Southport at the end of July.
The Double Jeopardy Podcast hosted by criminal specialists Ken Macdonald KC and Tim Owen KC has published an episode, Lucy Letby: The Shadow of a Doubt? commenting on the evidence or lack of it in the infamous Letby case (which we covered in last month’s roundup) and on the various criticisms made of it, including in various other podcasts. A follow-up episode, Lucy Letby Part 2: the response deals with listeners’ responses to that discussion.
The Judiciary website had a new video showing a Day in the life of Lady Justice Eleanor King, the latest in a series of biographical portraits of the judiciary. King LJ was a High Court judge in the Family Division and was appointed the Family Division Liaison Judge, firstly to the Northern Circuit and then the Midland Circuit from 2010 to 2014, before becoming a Lady Justice of Appeal in 2014.
LEGAL BLOGGING
We’ve been attending some court hearings this month, which we’ll be able to report on in the next few weeks.
RECENT CASE COMMENTARY
The Financial Remedies Journal had a piece by Andrew Day and Charmian Jackson on the impact of pre-marital cohabitation and separation on financial awards: Cohabitation and Separation: When Does the Clock Start and Stop? Although it discusses a range of cases, it focuses in detail on the recent decision of Recorder Rhys Taylor in MR v EF [2024] EWFC 144 (B).
Domestic abuse and the Financial Remedies Court, a guest post by Femi Ogunlende on our blog, discussed the current approach to domestic abuse in financial remedy proceedings. Put briefly it explains that ‘the recent decision of Mr. Justice Peel in N v J [2024] EWFC 184 is important and says if you want the court to consider domestic abuse as part of your case you will need to follow the procedure in Tsvetkov v Khayrova [2023] EWFC 130; it also says that domestic abuse will only potentially be taken into account by the court if it is exceptional and has had a negative financial impact on the alleged victim’.
Another guest post, Final divorce orders – a ‘particular category’, by Elizabeth Wark explains what happened when a solicitor accidentally applied online for a divorce for the wrong client, and why that couldn’t be fixed by the court. This explains the background and consequences of the case of Williams v. Williams [2024] EWHC 733 (Fam), which was reported in the press at the time (see our April roundup).
NEW JUDGMENTS OF INTEREST
Other than the cases noted above.
This Court of Protection judgment about a young adult includes some interesting discussion by Mr Justice Hayden about balancing Article 8 and Article 10 rights. The BBC wanted to make a TV programme about the alleged lack of adequate mental health provision for ‘MC’ that would involve lifting some of the non-identifying restrictions in the CoP Transparency Order. MC’s adoptive mother was described by the judge as having ‘… found herself confronted by a terrible paradox in which her desire to help others in MC’s situation and to campaign for better resources cannot be reconciled with the therapeutic treatment plan for her son’. The judge concluded that allowing MC to be identified would pose too high a risk of disrupting his treatment.
Re E, F and G (Interim Child Arrangements) [2024] EWCA Civ 874
Lord Justice Baker delivered the judgment in this appeal against an order by HHJ Tolson to adjourn a fact-finding hearing in a private law dispute and put in place interim unsupervised contact arrangements between three girls and their father. There were various complexities in the case, including an application by the father for a Female Genital Mutilation Protection Order because he claimed the mother would take the children to Egypt for that purpose, allegations by the mother of domestic abuse, and delays while the court tried unsuccessfully to find a QLR. The Cafcass guardian had recommended that supervised contact continue pending the outcome of the fact-finding hearing, but the judge decided that it was time to move to unsupervised contact which he said posed ‘no unmanageable risk’ to the children. The mother appealed on the grounds that the judge had been wrong to adjourn to continue to search for a QLR (this ground was dismissed by the Court of Appeal) and on a number of issues relating to the way the judge had approached the domestic abuse allegations. For example, at one point he had commented that ‘Cafcass is very risk averse these days’. The Court of Appeal said that the judge’s conclusions and departure from the guardian’s recommendations were unsustainable and had left the mother believing he had pre-determined the issues. The contact order was set aside and the case was sent back to a different judge.
Re A (Appeal Costs) [2024] EWHC 2218 (Fam)
This short judgment about legal costs relates to a case we wrote on in our August Roundup. The judge, Ms Justice Henke, explains that the general rule in cases involving children is not to order the payment of one parent’s costs by the other, without good reason. Although she had criticised both parents’ litigation conduct as ‘frustrating’, neither had behaved ‘reprehensibly’, and she did not make the costs order sought by the mother. This would only risk aggravating the poor relationship between the parents and not be in the child’s welfare.
London Borough of Hammersmith & Fulham v G and others [2024] EWHC 2200 (Fam)
A lengthy, complex judgment in care proceedings following the tragic death (eventually found to be accidental) of one of the parents’ four children in mid-2022. There was an outstanding issue about whether the child had also suffered rib fractures. The judge, Mr Justice Keehan, is critical of significant delays in fact-finding, because of an associated criminal investigation. He calls for improvements in practice, saying that the recently launched ‘Disclosure of Information between Family and Criminal Agencies and Jurisdictions: 2024 Protocol’ is an essential starting point. The judge is also, regretfully, critical of the evidence submitted by an expert histopathologist (someone who specialises in microscopic examination of tissue). This report was filed late and conflicted with other expert evidence which was preferred by the court. The judge commented that the expert. Professor Mangham, was currently the only forensic consultant histopathologist accepting instructions in cases of suspicious death and/or alleged inflicted injuries in the country and attributed his failings in this case to his huge workload.
F v M and others [2024] EWFC 239 (B)
The judge in this case, HHJ Owens in Oxford Family Court, begins by explaining that she wants the children (now aged 15 and 16) to have access to her judgment so they can understand what has led to her decision on child arrangements. It’s therefore written in plain English, although it’s long. Both the mother and the father had failed to protect the children from parental conflict. The judge summarises all the professional evidence as concluding that there is no risk to the two children now spending time with their father, but that they have consistently said that they do not want to spend time with him. The evidence also showed that the father had completed recommended parenting courses. The Cafcass Guardian was very clear that if the children grow up without a relationship with their father, this will harm them in the long term because it will affect their sense of identity. The judge concludes that she will make a joint-lives-with order but, unusually (we think) that the children can decide when they want to live with their father.
K (Mother) v P (Father) [2024] EWFC 235 (B)
This judgment was handed down in March this year but only published in August. It’s 150 paragraphs long (fact-specific about the truth or otherwise of child abuse allegations) and the judge (Recorder Reed) states that she did not have time in March to fully anonymise it. A postscript adds that she did eventually achieve this but the case highlights the burden on judges having to do their own anonymisation, despite the Transparency Implementation Group’s call for an anonymisation unit.
Re C (A Child) (Care Proceedings Withdrawal) [2024] EWFC 227 (B)
The judge at Newport Family Court, HHJ Holmes, described this case as being one of ‘chaos’ caused by the local authority and the police force. He agreed with the lawyer for the child that ‘the Local Authority’s management of the child’s care since August 2022 has been negligent, unlawful at points and a harmful interference with his right to family life.’ He wrote the judgment intending the local authority and the police force to have ‘a clear and complete picture of matters so that lessons can be learned, and mistakes of this nature can be avoided in the future’. The child, who is disabled with a life-limiting condition, had been well cared for and content with his grandparents (who were special guardians) until August 2022 when he was removed from them by the police ‘in distressing circumstances’ and placed in foster care for 17 months. The removal happened after an unsubstantiated allegation was made against the grandparents. The multiple failings can’t be completely summarised here, but included: unlawful use of ‘voluntary’ accommodation; unexplained delays; non disclosure of local authority records and even a failure to check their own historical records; misunderstanding of the significant harm threshold; inappropriate referral to the police; lack of knowledge of relevant protocols; and returning the child home in an unplanned and unsupported way. There is a separate judgment, [2024[ EWFC 228 (B), about the publication itself, because the local authority and police force didn’t want the judgment published. The judge decided to publish, although didn’t identify any individuals because the failings were systemic – ‘the result of a lack of supervision; lack of appropriate management; lack of awareness of the most basic of legal principles and lack of awareness of the family justice system and procedures’. He also decided against naming the local authority or police force as this could be a geographical identifier of the family.
OTHER TRANSPARENCY etc NEWS
The National Centre for Social Research (NatCen) published a report on Data in the Family justice system: what is available and to whom (July 2024) which we mentioned at the end of last month’s roundup, saying we would write more about it in due course. We duly did so in a post entitled Why we don’t know what’s going on in family courts (14 August 2024), noting that “the report has exposed huge data gaps in the family justice system and that there is no-one with responsibility for any sort of oversight or strategy on data availability in family courts”.
The President of the Family Division, Sir Andrew McFarlane, issued his end-of-term report on 31 July 2024. This latest View from the President’s Chambers covered myriad topics, including Pathfinder courts, MIAMs, domestic abuse services, the relaunch of Public Law Online, priorities set by the national Family Justice Board, adoption, disclosure of information between family and criminal proceedings, security in courts, digitisation of family court processes, and the controversial the suspected inflicted head injury service (SIHIS) pilot. We summarised it all in An update on the family courts from ‘top judge’. Disappointingly, there was little on transparency. Some items were also covered by the Law Society Gazette in Renewed bid to tackle ‘unacceptable’ family court backlog.
Pinsent Masons Out-Law blog reported that England postpones decision on proposed non-party access to court documents rule. This related to objections to a proposal by the Civil Procedure Rule Committee (CPRC) to amend rule 5.4C of the Civil Procedure Rules (CPR) to widen access to court documents in England and Wales. The new rule would make them available to non-parties ‘as of right’, without the need for the non-party to make an application to the court and explain why giving it access to those documents would further the ‘open justice’ principle. But following a consultation which closed on 8 April, the CPRC had decided, at a meeting on 7 June, minutes of which had recently been released, to delay the change and refer the whole matter to the newly-formed Transparency and Open Justice Board.
The Public Services Committee of the House of Lords launched a short inquiry into Interpreting and Translation Services (ITS) in the Courts on 9 August 2024, seeking to understand the experience of procuring ITS in the courts, policy recommendations for supporting service providers, and the potential role of technology in enabling ITS. The Committee has invited written evidence to be submitted by 30 September 2024 [this is evidently a VERY short inquiry!] and expects to report on its findings towards the end of the year.
The Children’s Commissioner for England, Dame Rachel de Souza issued the third report in her investigation of the use of strip searching powers by police forces on children, Strip searching of children in England and Wales: First complete dataset for 2018–2023, including new data July 2022-June 2023 (19 August 2024). The report shows that, despite promising signs and examples of good and improving practice across police force areas, there remains widespread failure to comply with safeguarding processes designed to protect children during intimate searches. The report found a worrying number (45%) of searches being conducted without an appropriate adult being present, an increasing number of searches of younger children (aged 15 or less), and a preponderance of searches on suspicion of drugs, rather than knives or other immediate risks.
The Information Rights and Wrongs blog noted in a post entitled Closed justice and the EIR (26 August 2024) that the Information Commissioner’s Office (ICO) had cited a decision of the Upper Tribunal (Administrative Appeals Chamber) in the case of Department for the Economy (Northern Ireland) v Information Commissioner and White (GIA/85/2021) in its guidance on the Environmental Information Regulations 2004 – but the judgment itself has never been openly published online. (Most judgments of the Upper Tribunal, unless subject to reporting restrictions, are published on its own website, many also on BAILII or TNA.) When asked for a copy of said judgment, the ICO refused to supply a copy, asserting that its own copy was “not intended for publication or wider disclosure”. Jon Baines, the blog’s author, has vowed to obtain from the tribunal and if necessary publish a copy of the judgment himself.
Luke Clements on his blog reported that the Royal College of Paediatrics and Child Health had, by letter of 1 August 2024, refused the request in an open letter by a number of researchers and NGOs calling for the withdrawal of its 2021 guidance concerning FII (Fabricated or Induced Illness). In a Press Statement issued on 7 August 2024, the signatories to the Open Letter expressed their concern about the discriminatory and traumatic impact that the guidance is having on families. They pointed to the independent research and evidence from practice about these serious problems and expressed the view that no reasonable body (let alone one exercising public functions) could fail to take urgent action.
Transform Justice had a new post, Courtwatching: a learning guide, with a downloadable document providing resources on training, guidance and data collection for anyone interested in setting up their own courtwatching project, including charities, community groups and universities.
The Open Justice Court of Protection Project blog had a post on What to do if the Transparency Order prevents you from naming a public body, prompted by the experience of its members in attempting to watch and write about hearings in the Court of Protection, which are open but subject to transparency orders restricting what can be said about them. In some recent cases, the transparency order has mistakenly but wrongly prevented the naming of public bodies, such as a local authority/the Trust/the Public Guardian. The blog explains why this is wrong, and what can be done about it.
FAMILY LAW IN OTHER JURISDICTIONS
India
The BBC reported Mystery surrounds US woman found starving and chained to tree in India (3 August 2024). Lalita Kayi, 50, was discovered in the dense forests of Sindhudurg district after her cries for help were heard by shepherds. In a written statement to the police, she said she was married to a man in the southern state of Tamil Nadu that it was he who had tied her to the tree. But questions remained unanswered and three days later the BBC reported that US woman found chained to tree in India tied herself, say police. It appeared that the woman was not married after all and was said to have been hallucinating. She was now receiving medical treatment.
America
The Daily Mail had a story on Halle Berry’s heartache over her ‘struggling’ son revealed as war with Olivier Martinez rages on, which concerned the continuing dispute between two formerly married actors over the upbringing of their 10-year-old son Maceo, following the breakup of their marriage in 2015. The story is also covered by the LA Times, who confirmed that Halle Berry will pay $8,000 a month in child support for joint custody of son with Olivier Martinez after 8-year divorce. You’d think this might conclude matters but the Mail reports ‘both sides making new claims in legal documents’.
That’s all for now. Thanks for reading.
Seen something to go in the next Roundup or that you’d like us to write about? Send it to info@transparencyproject.org.uk
But finally…
We have a small favour to ask!
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