Family Law publishes a regular column by The Transparency Project. This blog post originally appeared in the April 2018 issue, [2018] Fam Law 464
On 15 February 2018, The Transparency Project began a dialogue about the use of language by professionals who work with children in our blog post: ‘Things children say – Disclosure, allegations and why language matters’. It was prompted by the NSPCC’s use of the term ‘disclosure’ in tweets and other material addressed to professionals working with children. We reflected upon whether there were better ways of talking about things children say about their experiences.
It is easy to adopt the position that use of the term ‘disclosure’ is wrong – there is plenty of evidence from the forensic context of why it is rightly deprecated, as MacDonald J recently reminded us in AS v TH (False Allegations of Abuse) [2016] EWHC 532 (Fam):
‘[D]espite the fact that the use of the term “disclosure” to describe a statement or allegation of abuse made by a child has been deprecated since the Cleveland Report due to it precluding the notion that the abuse might not have occurred (see para 12.34(1)), every professional who gave evidence in this case (except the children’s guardian) used the term “disclosure” to describe what the children had said to them.’
In AS v TS MacDonald J sets out the key passages from that report in particular:
‘Throughout the phase of the initial assessment and preliminary decision making, social workers should be conscious of the fact that the presumption that abuse has taken place can have damaging repercussions for the child and the family. Equally, an abnormally low level of alertness to the possibility of child sexual abuse may deter children from subsequently trusting adults sufficiently to reveal the fact of abuse to them (para 13.22).’
In that case, where the records were peppered with references to the children’s ‘disclosures’ and where the children had been the subject of multiple inappropriately conducted interviews, MacDonald J concluded that, ‘had professionals adhered to well established guidance and procedure they would have discovered that the allegations lacked credibility’.
This is far from the only time a judge has issued a reminder about the warnings in the Cleveland Enquiry report (Report of the Inquiry into Child Abuse in Cleveland 1987, Cm 412 (HMSO, 1988, pp 204–214) and see also the Orkney Inquiry (Report of Inquiry into the Removal of Children from Orkney in February 1991 (HMSO, 1992, pp 272, para 15.21, to 275, para 15.32). In the midst of the current controversy over disclosure failures in the context of criminal cases, the term ‘disclosure’ is perhaps more loaded than ever (albeit that ‘disclosure’ there is used in a different sense – where the provision of information is imperative).
What is more interesting – and, perhaps, more important – is to think about why professionals who rarely come into contact with a forensic judicial process continue to use the term ‘disclosure’ and to dismiss challenges to its use. Many readers of this journal will have experience of professionals being challenged in evidence, not just on their bare use of the term but the underlying assumptions and approach that it so often flags up – though lawyers and judges too are guilty of slipping into use of the term as a convenient shorthand (and there are examples of this on BAILII). In Re W (fact-finding) [2014] EWHC 4347 (Fam) (17 October 2014) Sir Gavyn Arthur recorded a social worker’s evidence as including the comment:
‘I was told this judge doesn’t like the use of the word “disclosure” for allegations by children. I understand that courts in general don’t like the use of the word “disclosure” ‘. She had not read the Cleveland report of 1987 and did not know if it criticised the use of the word “disclosure” by professionals.’
That judgment was overturned on appeal but it highlights the tension between disciplines, and the simplistic idea that language is divorced from practice.
Alert practitioners will see how easily the evidence of children can be influenced, compromised and rendered unreliable where the evidence-gathering process is tainted by assumptions that children should automatically be believed (as is signified by the choice of ‘disclose’ rather than other descriptions). When two siblings give contradictory and incompatible accounts of the same parent’s behaviour, the flaws in such an approach become blatant. Which is making a true ‘disclosure’ of what happened and which is lying or mistaken (perhaps both are)? Children are no more reliable historians than adults, and there may be many reasons why they are less so. They need to be listened to, but not treated credulously.
In D v B And Others (Flawed Sexual Abuse Enquiry) [2006] EWHC 2987 (Fam), [2007] 1 FLR 1295, Recorder Wildblood QC (as he then was), taking guidance from the Court of Appeal and the Cleveland report, said:
‘What the children say is hearsay (admissible but needs to be scrutinised with great care…). It is necessary to examine with particular care:
a) what the children have said;
b) the circumstances in which they said it;
c) the circumstances in which any alleged abuse might have occurred (eg what happened during contact when abuse is said to have occurred? Who was present, etc?).
I am sure that the mother genuinely believes that the allegations that she made against the father are true. Her fears have been confirmed by some professionals (albeit without proper analysis) and, at times she has been left in an impossible position by what I have called the opposing system (Taunton court proceeding on one basis, some professionals in Surrey proceeding on another).
The mother pressed [the child] as to whether the father had sexually abused her and, in all probability, she did so in a very suggestive way. Upon the child confirming her fears, the mother reacted in a highly emotional manner leaving [the child] in no doubt at all that the father had abused her. [this was]… reinforced by the mother’s friends… assumed abuse became an established fact of life.’
Many of the professionals in that case had talked of and proceeded on the basis of ‘disclosures’.
It may be that there is a tendency on the part of frontline professionals working directly with children to see judicial processes as separate from their child protection function and that, therefore, the challenges from lawyers are seen as ‘legalistic’ or irrelevant. That can be seen arguably in D v B and in the approach taken by the NSPCC. But the lessons of historic enquiries like Cleveland and of many Family Court trials since then tell us otherwise: when the early stages of gathering the evidence of children go wrong their experiences are not properly understood and they consequently may go unprotected (either because abuse that actually happened cannot be proved or because professionals misidentify what is actually happening and another form of harm is caused as a result). In a civil context, Eady J dealt with claims arising from the inadequate and wholly prejudicial investigations into (unfounded) allegations of sexual abuse by nursery workers. He said:
‘[W]hen young children are interviewed by an adult about some question of fact, by no means confined to sexual abuse, their accounts may come quickly to conform to the suggestions or beliefs of the interviewer. Moreover, when the inquiry is extended to issues going beyond matters of fact, such as interpretation or value judgments, a child’s responses will often come to conform similarly with the interviewer’s point of view… . if interviewers believe that all the children they are interviewing have experienced a certain event, then it is probable that many of the children will come to make such claims even if they did not.’ (Lillie & Anor v Newcastle City Council & Ors [2002] EWHC 1600 (QB)(30 July 2002))
Other examples include: Re A and B (Children) (fact finding hearing) [2015] EWFC B48 (20 March 2015) and Re M (Sexual Abuse Allegations: Interviewing Techniques) [1999] 2 FLR 92 (Sir Stephen Brown P).
So, challenge to the use of a particular term is not just legalistic pedantry. Any professional working with children ought to have an understanding of the basics of the child protection process from start to finish – including any trial process – so that they can appreciate that things may not be as simple as moving from ‘disclosure’ to safety in one easy move. But equally, those of us who primarily work within the forensic part of the process need to appreciate the challenges of dealing with these issues in the moment, and the pressing need for an adult to do something when confronted with a child in distress, often with limited training.
Judgments delivered in the family court day in and day out have potential to illustrate forcefully to those who do not get what the fuss is about, how the words and actions of a professional receiving an account from a child of apparent abuse can matter very much for that child, their family (and anyone accused) in the long run. If the court process is seen as somehow disconnected from, or separate to, frontline child protection work, that is at least in part because it is not visible, unfamiliar, and abstract.
Inside the family court system, where we prefer the term ‘allegation’ over ‘disclosure’, it took an outsider (a journalist) to remind us that ‘allegation’ is itself an unhelpfully loaded term to the outside world (received as emphasising distrust in the reliability of the thing said). Whilst lawyers and judges are accustomed to holding in mind two or more possible explanations at one time, pending a determination, for those who do not spend their working lives immersed in the uncertainty of trial work, ‘allegations’ are most likely associated with legal caveats to controversial or potentially defamatory statements made in the mainstream print or broadcast media. One might also say that to describe the utterances of very small children as ‘allegations’ may imply a level of intention that is inconsistent with the child’s social and cognitive development. And so, in our blog post we suggested that it might be rather better to avoid both ‘disclosure’ and ‘allegation’ and to talk instead of the things children say or tell us, or to talk of their accounts.
No doubt there are many other examples of language used within the family justice system which are used out of habit, but which convey meanings we do not appreciate or intend, either to other professionals or the families with whom we work. Perhaps one obvious example is the revised nomenclature for contact and residence orders: child arrangements: live with/spend time with orders – which was an admirable attempt to avoid the unhelpful possessive connotations of ‘custody’ and of the symbolic superior status that had become associated with ‘residence’, but which seems to have proved too much of a mouthful to have led to the consistent eradication of the old language even by lawyers, let alone in public consciousness or in the media.
Listening to the observations and challenges of those who work outside our sphere of daily operation is one way that we can be helped to notice those habitual words and behaviour that pepper our practice, and to think about changing them. An example is our insistence on correcting references in the media to our habitual ‘secrecy’ of the family court with the term ‘privacy’. We inside, perhaps, describe the intent, whilst others outside describe the effect. As the President of the Family Division observed in Re J (Reporting Restriction: Internet: Video) [2013] EWHC 2694 (Fam), [2014] 1 FLR 523, this nice distinction is really only appreciated by lawyers, and we should be more aware of how it appears to the families and to the public it serves and is accountable to.
Making what we do visible to journalists, other professionals and the wider public is both an opportunity to help those other professionals appreciate the interconnectedness of their work and ours, and to appreciate the impact their actions might have on the forensic process and upon actual outcomes for children (for better or for worse), and for us to learn from the perspectives of those who do not swim in the same water we do.
At The Transparency Project we will continue to encourage professionals to participate in discussion about how we do things in the Family Court and why ‘because we have always done it this way’ is not a good enough reason to continue. We have nothing to fear from observation and challenge and everything to gain. We welcome guest blog posts from professionals and non-professionals alike (whether sharing or challenging views like those set out here).
We end with an excerpt from a comment received from a parent on our ‘disclosure’ blog post as food for thought:
‘I’m a parent so not hugely familiar with the judicial context but here goes for what it is worth:
Language
I’ve concluded that if you control the language about something you control the related narrative. The extraordinarily judgmental and let’s face it, nasty, use of language to describe families who need services that do not work, to work as they should, seems all-pervasive. Here are just a few examples:
• We have a child protection system, not a child welfare system.
• Neglect only counts if it is parental neglect.
• Families are difficult, they do not have difficulties.
• Families are challenging, they do not face challenges.
• Families need an intervention, not help.
• Families are failing, not services.
• Families need early intervention, not good well-funded universal services that support families in their role as parents.
• Social workers are children’s social workers, not families’ social workers.
• No one has rights. You should not be upset or angry about this but if you are, therapy is the answer.
• Injustice has become trauma.’
Whether you share that perspective or not it can only be healthy to be aware of it, to acknowledge it and to reflect upon it.