Welcome to the Roundup, where we correct, clarify and comment on media reports of family court cases, explain and comment on published family court judgments and highlight other transparency news.
MEDIA COVERAGE OF FAMILY LAW MATTERS
The Independent (16 March 2024) had a story on How sex abusers who target their own children keep parental rights — and the mothers fighting back.
It reported that, under the current law in England & Wales, child sex abusers can keep their parental rights even if they target their own children, and that applying to revoke parental responsibility is a protracted and costly process that requires going through the family courts. Claire Waxman, London’s Victims’ Commissioner, and shadow Home Secretary Harriet Harman have both tabled amendments to the Criminal Justice Bill to address the problem. The story (which fails to link to anything other than its own website) concludes with a statement from a Ministry of Justice spokesperson:
‘The safety of a child is absolutely paramount. Family court judges will always put the welfare of children first, and can already make orders limiting the parental rights of those found guilty of such offences. We are also carefully reviewing the approach to parental access to make sure all children are kept from harm.’ (emphasis added)
We have been trying to find out more about the government’s review of the presumption of parental involvement through freedom of information (FOI) requests, but have so far met with frustrating lack of progress: see on this blog, The MoJ review of the presumption of parental involvement
The Guardian (23 March 2024) had an interesting piece by Amelia Gentleman about the difficulty of prosecuting coercive control cases: ‘But he didn’t hit you, did he?’: inside the coercive control courtroom.
The article helpfully links to the offence, introduced as section 76 of the Serious Crime Act 2015, in England and Wales — the first jurisdiction to introduce such an offence, thanks to the efforts of Theresa May as home secretary. Its profile has been raised by some high profile prosecutions and its inclusion as a plot line in The Archers. But convictions have proven difficult to obtain, given the nature of the evidence required. At least one of the extreme cases described is also going through family court. It’s also a good illustration of how effective justice system reporting can be done anonymously.
The BBC (25 January 2024) had a news story by Sanchia Berg about Baby Elsa: Abandoned newborn leaves hospital with foster parents. This concerned a new born baby wrapped in a blanket in a bag which a dog walker had found in Newham. The local authority applied for an interim care order, which was issued by Judge Carol Atkinson, sitting in East London Family Court. The baby’s parents had not come forward and there was no information about her identity. Elsa (the judge declined the change the name, inspired by the film Frozen) was living with foster parents and was apparently doing well.
This may well be the first case reported under the Reporting Pilot which was extended to East London Family Court at the end of January. Since then, we have covered more cases in that court under the pilot: see Legal Blogging below.
Today’s Family Lawyer (18 March 2024) had an article by Alex Verdan KC, barrister at 4PB and Sacha Lee, associate at Dawson Cornwell, on Family Court reporting: how effective and accurate is it? In fact, the article is mainly by Sacha Lee, complaining of selective and sensationalising reporting of family cases by the mainstream media, but incorporates a longish statement from Alex Verdan, saying much the same, eg:
‘Family practitioners have welcomed the Transparency Reporting Pilot as an opportunity for the public to gain greater accurate insight into the workings of the family courts. However, the media coverage that has followed has often been sensationalist and critical in nature, as perhaps best exemplified by the media’s treatment of alienating behaviours and domestic abuse cases which contrasts with the careful, nuanced, and balanced approach adopted by the vast majority of family courts in such cases.’
We felt this attack on the media was itself rather selective, and failed to mention or appreciate the obstacles that reporters face, even under the more permissive regime of the Reporting Pilot, in overcoming the sometimes hostile suspicions of the lawyers and other parties in the case, and getting them to supply information promptly, even when ordered by the court.
LEGAL BLOGGING
Maintenance for a Disabled Adult Child: A Case of Legal Blogging (13 March 2024), by Polly Morgan, appeared on the Financial Remedies Journal blog, and expanded on an earlier post on this blog. She explains that reported cases about maintenance for a disabled adult child under the Matrimonial Causes Act 1973 are few and far between, and it was an opportunity for her to observe such a case as a legal blogger. Because it did not fall within the Reporting Pilot, it was also necessary to obtain the court’s permission to report it. The judgments, by HHJ Shelton sitting in Leeds, are now published as AB v CD [2022] EWFC 197 and 198; and [2023] EWFC 103.
Making cases smaller — while ensuring a fair trial (13 March 2024), by Julie Doughty, considered a number of recent judgments given by Mrs Justice Lieven that set out guidance, including on the necessity for an intermediary, to tackle some of the causes of delays in family court cases and address problems created by the scarcity of publicly funded resources.
Happy endings in East London Family Court — legal blogging under the extended Reporting Pilot (18 February 2024) and Another happy ending in East London Family Court — legal blogging under the extended Reporting Pilot (3 March 2024) were posts by Paul Magrath covering a number of cases in East London Family Court soon after the Reporting Pilot was extended there, and recording his experience of legal blogging and the generally optimistic outcomes of some of the cases attended.
NEW JUDGMENTS OF INTEREST
Bracknell Forest Council v Mother, Father and Child [2024] EWFC 68 (B). This was a fact-finding hearing in care proceedings where marks on the skin of a 3 week old baby were suspected to be bruises caused by one of her parents. The child had remained living with her parents during proceedings, under a written agreement with the local authority, which had failed in its application for an interim care order. It is a complex judgment analysing several medical reports and including discussion of a possible alternative for the marks of ‘cutis marmorata’. It is also interesting to see the analysis by the judge of the parents’ text messages to each other on their discovery of the marks. The Family Court judge, HHJ Case, concluded that the marks were not proved to be bruises and that there were no other concerns about parenting. Consequently, the care application was dismissed. The judge acknowledged the trauma that the parents had been subject to and expressed his sympathy but also concluded that the local authority had acted properly in making the application, following initial medical evidence.
A Local Authority v D and others [2024] EWFC 61. Anyone who has encountered the security gates at a court will be surprised to read the facts in this judgment. We think this the first published judgment on the use of a court ‘Protocol for Managing Potentially Violent People (the PVP Protocol)’ since this was reviewed following the attack on a family court judge in November last year. This matter concerned care applications for four children with adoption as the plan for the younger two, all strongly opposed by their mother. During January, on a day when her case was not listed, the mother had walked into Newcastle court and successfully smuggled a knife through security, which she shortly after handed in (wrapped and sealed) to a court reception desk and then left the building. Under the PVP Protocol, a risk assessment was carried out and this resulted in an order barring the mother from entering the court building again. She was given permission to attend future hearings remotely. However, this turned out to be unworkable, so Mr Justice Peel (a High Court judge sitting in the Family Court) undertook an exercise in balancing the mother’s rights to a fair trial and to respect for her family life, with the safety issues, and concluded that the mother should attend the hearings in person but subject to some very detailed strict conditions to ensure the risk was contained. The judge emphasised that he was not issuing general guidance and that each case involving the Protocol would involve different factors.
Re X, Y and Z [2024] EWFC 62 (B). This is a helpful judgment on the use of a Children Act 1989 section 91(14) barring order as it sets out the guidance in earlier authorities and emphasises the requirement for a party to demonstrate a ‘material change in circumstances’ if he wants to be allowed to make a further application while still subject to the order. Following a summary of what reads as harassment of the court itself (although the judge is careful to politely express no criticism of the father other than to observe that the applications are causing the children emotional harm), an order was made to prevent the father applying again within seven years. At the conclusion of this judgment, HHJ Greensmith lists ‘the key prevalent facts’ relating to the family that will inform the court on what the material circumstances are, if the father does in future apply for leave. The judge notes that the father is a constant litigator — with ten cases brought by him published on BAILII, links to which the judge has placed on the court file so they are available in any future family court applications. For those interested in rubrics ( What is a rubric and why does it matter?) this judgment appears on TNA without one, but everyone apart from the father’s Mckenzie friend and the mother’s barrister has been anonymised.
Re L (a boy born November 2022) [2024] EWFC 60 (B). This case is of interest because it is so rare to see a judgment published by a deputy district judge. Here, DDJ Nahal-Macdonald in Horsham Family Court has written a 162-paragraph judgment on a fact-finding hearing in child arrangements proceedings where the mother and father both made allegations against each other of abusive behaviours during the final months of their three year relationship. Their child was about 18 months old at the date of this hearing and had been having supervised contact with his father under an interim order. Although the judgment is so lengthy, many paragraphs are one sentence only, and are clearly structured into headed sections. Findings of domestic abuse of the mother by the father were made by the judge, which will be taken forward into a Cafcass report and a dispute resolution hearing (although it seems more likely that resolution will only be achieved with a welfare hearing). While some commentators on transparency issues may see little public interest in ploughing through the minute details of all the incidents cited by these parents in their evidence, we would argue that there is value in the public being able to see how much effort this judge has put into investigating them. Again, no rubric, but we like the way the judgment has been given a distinctive name.
Luton Borough Council v R, V and X [2024] EWFC 52. This judgment contains very serious criticisms by the High Court judge, Mr Justice McDonald, of the actions of Luton Borough Council. He describes the local authority as taking a ‘casual and cavalier approach’ to assessing the risks to a 13 year old girl who had alleged she had been sexually abused by three men in her family over five years. Although an interim care order had been made two months earlier on the basis of an approved care plan that the child be removed from the family home and placed in foster care, she had been accommodated with her mother. This was despite clear conclusions by a local authority social worker, the Cafcass guardian, and an IRO that the mother could not protect her. The judgment does not contain inappropriate details of the alleged abuse and does not directly name anyone apart from the lawyers, but there are strong words about the poor practice of a local authority Head of Service and an Operations Manager.
Tortoise Media v a Local Authority, Mother, Father, X and Y [2024] EWFC 50. A case directly on transparency — this hearing was an application by journalists at Tortoise Media for a Transparency Order that would allow them to write about an ongoing care case before a High Court judge in the Family Court, Ms Justice Henke, where the parents’ names were already in the public domain because of criminal investigations. After weighing up all the arguments, the judge decided that although some of the usual restrictions could be lifted, there was to be no publication by Tortoise (or anyone else) about the family court proceedings until the conclusion of the criminal investigation or (if there is one) after a trial. You can read what Tortoise were allowed to report here — ‘Children of British woman suspected of illegal abortion removed from her care’.
Re J (Care plan for adoption) [2024] EWCA Civ 265. This was an appeal from a judgment at Luton Family Court where the judge, HHJ Kushner, had made care orders for five children, adoption being the plan for the youngest child, nine months old. Unfortunately, there had been what Lord Justice Baker describes as ‘a measure of disagreement between the judge and counsel’ about the time which the judge believed was necessary to spend on the final hearing of the care application, while the mother’s barrister had a number of issues to raise about the local authority’s evidence. Baker LJ notes that ‘the judge had a very heavy list of cases’ that day. The mother appealed on a number of grounds, including the legal basis for the order regarding the youngest child but also saying: ‘The manner in which the judge expressed herself in her judgment was unfair to the parents’ and there had been ‘serious procedural or other irregularities in the proceedings. Her conduct of the case and behaviour towards the parties and counsel was unreasonable and bordered on the oppressive.’ The Court of Appeal allowed the appeal on the arguments about evidence. commenting that the judge had been ‘understandably anxious to bring the proceedings to an end as soon as possible.’ The Court of Appeal benefited from ‘the legal analysis put before us by leading counsel’ and ‘time for reflection available to this Court but not to hard-pressed judges sitting at first instance.’ They did not go on to consider the points alleged about the judge’s behaviour.
Re SM (Deprivation of Liberty; Severely disabled child) [2024] EWHC 493 (Fam). For those readers who take an interest in the Deprivation of Liberty cases, here is an interesting judgment on whether a DoL authorisation under the High Court inherent jurisdiction is actually necessary where the extent of a child’s disabilities prevent her from leaving or wanting to leave, rather than her being prevented from leaving by operation of the state. This child here is 12 but in care and living with foster carers, so parental consent to her restricted liberty was not relevant. There’s a useful summary and comment on the case here by solicitor, Ben Troke of Weightmans — ‘From Cheshire West to Peterborough — a judicial attempt to narrow the definition of deprivation of liberty?’ (See also the item on DOL from Nuffield Family Justice Observatory, below.)
Re Z (Prohibition of cross examination: No QLR) [2024] EWFC 22. This is a bit technical, but for anyone looking for guidance on what to do when you need a QLR and there isn’t one, the President of the Family Division has issued some in a Family Court case in Newcastle, where apparently 120 attempts had been made to find a QLR. There is a case summary on Family Law Week by our Chair, Lucy Reed KC. We have written here about the QLR scheme (which is intended to prevent an alleged victim being questioned in court by their alleged abuser) — Holding a fact finding hearing in the absence of the perpetrator
Re T (Adoption hearing: involvement of applicants) [2024] EWCA Civ 189. This is an important case for local authorities and adoption agencies, setting out guidance on how and when adoptive applicants should be notified of and involved in court proceedings regarding the child they are applying to adopt. It seems that the applicant in this particular case in Truro Family Court had been treated pretty shabbily by almost everyone involved. The President has urged every adoption court to review their practice.
OTHER TRANSPARENCY etc NEWS
The Bureau of Investigative Journalism (TBIJ) has hired Hannah Summers to be its first full-time family court reporter in the UK. She will lead an investigative series exploring how allegations of domestic and sexual abuse are handled by the family justice system. She will work full-time on the project, which has been extended for a further two years.
Alongside launching the Family Court Files, TBIJ has helped train reporters to cover cases heard in family courts. There are plans to develop and expand the training being offered, which has been coordinated by journalist Louise Tickle (who is also a member of the Transparency Project).
The Family Justice Council (March 2024) has published a new edition of its Sorting Out Finances on Divorce. Updating the guide, last published in 2016, is said to have been a significant undertaking for the Financial Needs Working Group, with particular thanks being owed to HH Philip Waller CBE.
The Bridget Lindley Memorial Lecture (5 March 2024) entitled ‘A light or a sound in the distance — finding a clearer way through private family law proceedings’, was given by Jacky Tiotto, CEO of Cafcass. The online event was hosted as part of the Family Justice Council’s annual interdisciplinary conference. This year’s topic was ‘Children and Young People: Promoting a developmental approach in the Family Justice System’. You can watch the recording of the lecture on YouTube.
Counsel Magazine (February 2024) had an article by our chair, Lucy Reed KC, Public debate about private matters setting out the long path to greater transparency in the Family Court, cultural shifts and progress to date, following the extension of the Reporting Pilot to a further 16 family courts across England & Wales at the end of January. It concludes with an invitation to lawyers interesting in Legal Blogging to get in touch with us here at the Transparency Project, and check out Lucy’s training video.
The Courts and Tribunals Observers’ Network (18 February 2024) published an Open Letter to the LCJ: HMCTS guidance on public access to courts, also published on this blog, complaining of inadequacies and inaccuracies in recent guidance published by HMCTS. Overall, it says, ‘the Guide is deeply disappointing as a missed opportunity to provide a comprehensive and useful charter of the public access rights that flow from the principle of open justice’.
Nuffield Family Justice Observatory (28 March 2024) reports that, according to the latest official statistics, 289 children were subject to applications to deprive them of their liberty under the inherent jurisdiction of the high court (DoL applications) between October to December 2023 in England and Wales. The Ministry of Justice’s latest Family Court Statistics Quarterly release published 28 March 2024 covers the period up to the end of last year. This compares to 340 applications (including 38 ‘repeat’ applications relating to the same child) over the same period last year, and represents a slight decrease in the volume of applications, but overall the number of children subject to DoL applications remains similar, says the FJO.
However, as with some other data, the number of children in DOL applications is not consistently covered in the MoJ statistics. FJO says This marks only the second time that information about children subject to DoL applications has been included in national administrative data. Overall, FJO’s own data (covering January-June) together with data from the MoJ (covering July-December) suggest that 1,368 children have been subject to DoL applications in 2023.
The Magistrates’ Association has said that the Single Justice Procedure (SJP) which handles around 40,000 criminal cases every month needs reform if it is to be seen as fair and transparent. The organisation, which represents over 12,000 magistrates in England and Wales, published its new position on the Single Justice Procedure (SJP) in March 2024. This reflects hundreds of its members’ insights into hearing SJP cases over the last eight years since it was introduced and responds to recent interest from the media on the SJP’s impact on defendants, especially vulnerable and elderly people. It makes 12 recommendations to improve the operation, transparency and fairness of the SJP, including
‘Boosting transparency by publishing more data on the SJP, such as how many defendants plead guilty, how many make no pleas, and how many ask to come to court, nationally and broken down by region.’
BBC Law in Action (26 March 2024) went out for the last time, with long-running host Joshua Rozenberg KC (hon) interviewing the Lady Chief Justice, Baroness Carr of Walton-on-the-Hill, on her priorities and concerns. The 40-year-old Radio 4 programme has featured a number of hosts, including Marcel Berlins and Clive Coleman, but Rozenberg has done more than almost anyone, both through this programme and his other commentary, to promote public legal education in this country. Now, apparently to save money, the BBC have terminated the series altogether. It seems a great shame, given the increasing paucity of specialised legal reporting in the newspapers. We hope it is one of those treasured things, like the BBC Singers, that the bean counters may be persuaded to keep after all.
In a blog post last year, Law in Action: How it all began, Joshua explained how the show first came about, and the rather surprising try-out of a promising public law barrister called David Pannick as presenter back in 1981. (He is now Lord Pannick KC.) You can still listen to episodes going back to 2009 (with Clive Coleman) via the BBC.
In Harm’s Way: The memoir of a child protection lawyer from the most secretive court in England and Wales — the Family Court, a new book by Teresa Thornhill (14 March 2024, Harper Collins, £20) is described as the ‘memoir of a child protection lawyer from the most secretive court in England and Wales — the Family Court’. We have read the opening chapter and hope to review the book as a whole in due course.
Open Justice For All is campaigning for changes in the Victims and Prisoners Bill. Among its demands is for legislation to ensure:
- Full transcripts or audio recordings of Crown Court hearings to be provided to victims swiftly upon request, at no cost.
- All Crown Court sentencing remarks and/or the Judge’s summary to be provided to victims swiftly upon request, at no cost.
- All Crown Court sentencing remarks to be published in a timely manner.
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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